(eBook PDF) Successful Contract

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 Contents
Figures ix
Foreword xi
Note on the text xiii
Introduction: student learning outcomes xv

1 Getting started 1
2 An introduction to contracts, torts, statutes and regulations 13
3 Owners, Designers, and Constructors 33
4 The basics of construction contracts 49
5 Different construction contract delivery methods 73
6 Interpreting the contract 93
7 Killer clauses 121
8 Insurance 149
9 Bonds 171
10 Warranties 199
11 Change orders 215
12 Differing site conditions 239
13 Schedule 259
14 Liens 283
15 Tort law 293
16 Statutes and regulations 315
17 Project closeout 353
18 Dispute resolution 371
19 Ethics 393

Appendix I: Sample contract 413

Appendix II: Daily work report 423
Glossary 425
Further reading and research 437
Index 441
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 Figures
1.1 30th Street Station and Cira Center, Philadelphia 1
1.2 Three phases plus one in continuous improvement of contract
administration 2
1.3 Boilerplate language 3
2.1 Suspension bridge 16
2.2 Construction cranes 18
2.3 Heritage Statue at National Archives Building 21
2.4 Ulysses S. Grant 26
3.1 U.S. Capitol, Washington, DC 34
3.2 Typical Design-Bid-Build relationship of
Designers–Owners–Constructors 36
3.3 Skyscrapers on a city street 37
3.4 The Benjamin Franklin Bridge 39
3.5 The Camden side of the Benjamin Franklin Bridge 39
3.6 and 3.7 The Fort Lee Bridge under construction, New Jersey 41
3.8 The PSFS Building, Philadelphia 43
4.1 The Empire State Building, New York City 54
4.2 Communications tower at the top of the Empire State Building 55
4.3 Page from a reproduction of the secret Book of Prices kept by the
Carpenters’ Company of the City and County of Philadelphia, 1786 67
5.1 Typical Design-Bid-Build relationship of Designers–Owners–
Constructors 74
5.2 The PSFS Building under construction 75
5.3 Typical Designer–Owner–Subcontractor relationships with a
Construction Manager 76
5.4 Carpenters’ Hall, Philadelphia 80
5.5 Parties that could be involved in an IPD project 85
6.1 Suspension method? As originally designed 104
6.2 Suspension method? As approved for construction 105
6.3 Wolf 111
6.4 Pyramid based on Maslow’s hierarchy of needs 113
7.1 Butterfly 132
7.2 Elevation view of wind vortexes in a hurricane 132
7.3 and 7.4 Inserting a new water wheel into a restored grist mill 136
7.5 The Circle Theater, Philadelphia 140
8.1 Evidence that a tornado touched down and was the cause of
damage to a project could negate coverage based on
a “tornado exclusion” 154
8.2 The mold spore Aspergillus fumagatus 155
8.3 A party wall in one of Benjamin Franklin’s properties 157
8.4 Fire markers on exterior wall 158
9.1 and 9.2 Subway station, under construction and completed 178
10.1 Engraving of London by Claes Van Visscher 206
10.2 and 10.3 Two views of the banking floor (second floor) of the PSFS Building
during punch list inspection 208
x Figures

11.1 Structural steel installation 216

11.2 One World Trade Center, also known as “Freedom Tower” 218
11.3 Change order process 227
11.4 Vanna Venturi House 234
12.1 Foundation from the excavation of the slave quarters,
Liberty Bell Pavilion, Philadelphia 248
12.2 Reconstruction of President Washington’s Chief Executive House in
Philadelphia 249
13.1 Ironworker during the construction of the Empire State Building 267
13.2 Excusable delay process 272
13.3 The Pentagon under construction 274
13.4 Construction elevator on the side of One World Trade Center 278
14.1 United States courtroom 285
14.2 During the Truman administration the White House was totally
“gutted” for renovations 288
15.1 The dark side of bridges 300
15.2 A pile of dirt can be a legal liability 303
15.3 Construction is a dangerous industry 306
16.1 Rainbow at the Denver International Airport 317
16.2 The Woolworth Building, New York City 321
16.3 Sidewalk memorial in front of the demolished remains of
two buildings 323
16.4 Safety is not just a hardhat issue 325
16.5 Inside the author’s hardhat 326
16.6 The Empire State Building, New York City 327
16.7 The tower at Hoover Dam 331
16.8 Lake Mead, created by Hoover Dam 331
16.9 Southern Manhattan at night 334
16.10 President Franklin Roosevelt signs the National Labor Relations Act
into law, July 5, 1935 339
17.1 For the Contract Administrator, the cityscape can be a forest of
finished buildings or a landscape of opportunity 358
17.2 Woolworth Building at Night 365
18.1 Five modes for resolving conflicts 372
18.2 Constitutional Convention of the United States, Philadelphia 375
18.3 Peter McGuire 376
18.4 Independence Hall, Philadelphia 387
19.1 Aristotle’s Path to Excellence 397
19.2 The Great Wall of China 401
19.3 Citigroup Center is one of the taller skyscrapers in New York City 407
 Foreword
As an author, I approach the subject of contract administration from the perspective of a
Constructor with over 40 years of experience in the industry, and I am often reminded that any
success I have enjoyed has often been the result of previous lessons learned the hard way. I
invite others to learn from my mistakes, because you probably don’t have time to make all the
mistakes I have made. But I also invite Constructors, and Design Professionals who want to
understand Constructors, to study from my perspective for two important reasons:

1. As contract law becomes more complex, too often we find ourselves in adversarial
relationships with one or more of the team members on a project. This is not good for
any of us, or for our clients, or for our industry as a whole. The more we understand the
complexities of delivering the obligations we have agreed to, the more likely we can turn
adversaries into allies, which I believe is the potential that technology is making available to
all of us if we choose to seize it.
2. Within the past couple centuries, the role of the Design Professional in the total
construction experience has diminished from the original “Master Builder” concept that had
been the way of construction for millennia. A return to a pure individual Master Builder may
not be possible, but we all still need to understand that achieving something incredible
is a goal for everyone on each and every project, and to do that requires effective and
even extraordinary teamwork. The benefits of Constructors and Design Professionals
recognizing the problems and opportunities of contract administration together can only
open new and improved methods of delivery, and Constructors, Architects, and Engineers
will find new and fulfilling levels of administration and achievement within the construction
process as we all move forward together.

I would like to invite you all to a personal perspective and understanding of my world of
construction, but I look forward to each of you in the future making it a better world of
construction for us all.
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 Note
C H Aon the text
PTER

In the following pages and during the course of a career in construction, the reader will
learn there are many perspectives of what is right and wrong in relation to contract law and
administration. What one court might conclude, another might not. Slight subtleties and
differences can change the outcome of a situation. This text is not to be used as a legal
standard or document. All readers should recognize the need for competent legal counsel
familiar with the issues of local, state, and Federal laws pertinent to any specific situation.
The most effective outcome of this text would be to bring about an atmosphere that
resolves conflicts effectively and eliminates the need for court or Alternative Dispute Resolution
processes.
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 INTRODUCTION

Student learning outcomes

It’s not what you look at that matters. It’s what you see.
Henry David Thoreau

Educators realize the true value of a course, a program, and ultimately a degree needs to be
measured in terms of what the student is able to take away. I generally consider several steps
in a student’s education in a particular subject. The first is “walking around knowledge.” This is
what I believe the student should absorb and remember without referring back to a text, notes,
or seeking input from another expert on the matter. Next there should be some recognition
by the student of what one does not know. In such a case the student should understand
where to seek additional information and help. After a course or program each student should
have confidence to know where to find and collect information, organize it, and how to use it
and apply it effectively. Finally, the ultimate goal is an ability to analyze situations and create
effective solutions.
Working in the mid to late twentieth century, Benjamin Bloom has been widely credited
with developing a system of learning objectives related to three primary areas of development
for students: (1) Knowing, (2) Feeling, and (3) Doing. Building on the foundation of Bloom’s
work along with other educators he worked with, accrediting agencies and institutions have
created various standards called student learning outcomes, student learning objectives, and
student learning priorities. By whatever name, the intention remains the effective growth of the
student’s abilities from:

1. remembering basic facts to

2. understanding the information to
3. applying the ideas to other circumstances to
4. analyzing situations in their basic components to
5. evaluating the various issues and challenges to
6. creating solutions.

This text has multiple elements to assist the student in the passage from Remembering
through to Creating.
Effective use of the “Instant recall” and “Key words” sections at the end of each chapter,
along with the flash cards and sample quiz questions on the Companion Website, will help the
student with remembering the key points of each chapter.
The text itself contains examples and stories to assist in the understanding of the issues. At
the end of chapters suggestions for additional information are offered. Also, additional video
xvi Introduction

discussions on the Companion Website will help to improve practical understanding of the
information.
At the end of each chapter, various exercises including the “You be the judge” exercises and
the related discussion on the Companion Website are intended to help in applying what has
been learned to actual circumstances.
Discussion exercises at the end of each chapter help the student analyze the material
covered in relation to actual challenges.
In addition, the discussion exercises and the “It’s a matter of ethics” discussions at the end
of each chapter can help the student evaluate the subject matter in relation to real-life issues
and create solutions before similar situations arise in one’s own life.
Of course, the most common means of measuring growth is testing, but this textbook is
also meant as a workbook. The growth in confidence and self-esteem of the reader who
diligently works through the exercises, shares ideas with others, and comes to conclusions
that will affect positive growth in the future is an even better measurement for one’s personal
success.
There are many priorities for development beyond memorization of facts. Effective
communication, creative and critical thinking, self-directed learning, and professional conduct
are some of the key benefits a reader will develop by working through the exercises and the
additional material at the end of each chapter under “Going the extra mile.”
Finally, but certainly not least, Chapter 19 deals with Ethics. Closely related to law, ethics
is discussed in this stand-alone chapter, but it should not be considered an “afterthought.”
For that reason there are ethics discussion exercises at the end of each chapter. The reader
is encouraged to open these exercises to group discussion, remembering that the sharing
of ideas is an opportunity to find other perspectives. One does not need to adopt a different
perspective, but the free exchange of ideas depends on an open atmosphere without fear of
ridicule or belligerence.
There are also ethics video segments, beginning with an “Introduction” on the Companion
Website, starting with Chapter 13 and continuing through Chapter 19.
If the reader would like to, Chapter 19 can be read first or at any time. Ethics is a difficult
subject and a definite challenge for all of us in the construction industry. It will continue to be a
challenge well past the completion of this workbook. Under extreme pressures, people face
constraints that force decisions about tradeoffs. To gain one issue costs something else, and
the choice is not always easy or even obvious.
In the end, there are many right answers for the learning outcomes contained within
remembering through creating solutions. The reader is encouraged to master as many as
possible, with the ultimate realization that growth begins by reading on, but it continues each
time the book is closed.
 CHAPTER
1
Getting started

Starting with this chapter, there will be a list of key learning objectives for each chapter. Many
readers might think it will be easier and certainly quicker to skip the learning objectives section.
“After all,” some might reason, “the points will obviously be repeated in the text that follows.”
However, an early understanding of the author’s intent is actually a positive reinforcement
to more effective reading, and it is also a discipline worth acquiring in preparation for
understanding the Designer’s and Owner’s intention within the contract documents.
Here, then, are the key learning objectives of this chapter.

Student learning outcomes

Upon completion the student should be able to. . .
• recognize there are three phases to contract administration: (1) read the
contract, (2) understand the contract, and (3) execute the contract
• know the importance of applying lessons learned to future projects
• evaluate the importance of schedule, cost, and quality in relation to the
contract documents
• analyze the other party’s needs in relation to the contract documents.

Figure 1.1 30th Street Station and Cira Center, Philadelphia

Photo credit: Charles W. Cook
2 1 Getting started

The neoclassical columns of 30th Street Station in Philadelphia contrast with the silver glass
façade of the Cira Center that at times seemingly blends with the sky it reflects. Built almost
eight decades apart, the two structures are a reminder of how different construction has
become over the millennia since the ancient Greeks advanced the use of “post and beam”
construction. In that time period, the relationship of Designers and Constructors has evolved
tremendously. No longer are buildings the products of individual “Master Builders,” who took
on the task of both design and execution while directing a crew of craft workers. Now most
structures are a joint effort of several corporate entities bound together by complex legal
documents that require considerable understanding and attention to details.
How well the details of the construction process are handled and the final structure successfully
realized requires diligence and commitment by each and every member of a construction team
assigned to the task of contract administration.

Whether these are the best of times or the worst of times depends a great deal on how we
approach the times. This is not just a textbook. This is also a workbook, providing you with a
balance of both theory and practice. Case facts and compensation figures may be important
to recognize, but how we react to contract conditions and, particularly, how we handle what
some term “killer clauses” is of far greater importance to our own success and the successful
completion of the projects for which we are responsible.
The Contract Administrator is helping to change the world, one “put in place a unit at a
time,” but, to do so effectively, he/she must read the contract one paragraph, and even one
sentence or clause, at a time. The devil is only in the details that we do not know. Knowing
all the details, however, is useless unless we know what to do with them. Knowing what to
do with them is helpful, but knowing how we will handle difficult situations is of far greater
importance.
Good contract administration depends on three phases: (1) reading the contract, (2)
understanding the actual requirements, and (3) executing to a successful conclusion.
Successfully doing this on one contract will provide the Contract Administrator with a fourth
phase leading to even more success when the knowledge and experience gained from one
project is applied to the next contract to be administered in a continuous quality improvement
process.

Read

Re-apply Understand

Execute

Figure 1.2 Three phases plus one in continuous improvement of contract administration
 Getting started 1 3

Figure 1.3 Boilerplate language

Photo credit: Charles W. Cook

Copper, brass, or tin plates have been affixed to fuel storage tanks and boilers since the
beginning of the Industrial Revolution. Eventually advertisers developed the practice of
sending copper plates of printing to newspapers to include as their standard portion of their
advertisements. Seeing the resemblance to the metal “boilerplates,” the standard portion of
the advertising became known as “boilerplates.” From that it became a short jump for printers
to call the standard portion of contracts “boilerplates.” For many Contract Administrators, the
boilerplate language may become repetitive and something one is inclined to skip, but within
the standard language some important issues might be found, particularly if there have been
changes made to the original “boilerplate” contract wording.

Note: Within the text, when an important word is introduced, it will be in bold (e.g. boilerplate
in the above box). The reader is encouraged to read the text in relation to what is being
discussed. At the end of each chapter the key words will be repeated. Definitions can
be found in the glossary and the reader can review using the flash card exercises on the
Companion Website.

Exercise 1.1
Take a moment
Read a contract

At the back of this book you will find a sample blank contract in Appendix I. The AIA and the
ConsensusDOCS contracts are certainly more widely used pre-printed contracts. We are
using in this exercise a sample contract the reader has never seen before. It is a contract to be
used between a General Contractor and a Subcontractor. The contract contains many basic
but important elements of construction contracts we will be discussing in later chapters of this
book.
Take a moment now, however, to read the contract before answering the questions that follow on
the next page.
4 1 Getting started

After you have read the contract in Appendix I, continue.

You may have thought the questions would be about specific clauses or requirements of the
contract, but we first have to understand our own approach to the most fundamental aspect of
reading a contract, and that is reading, itself.
In answering the following questions, be honest with yourself. This is not a test, but an opportunity
to recognize our own challenges. It is through understanding ourselves that we can make choices
to improve our value to others.

1. Were you solely concentrating on reading, with no competitors for your full attention (e.g.
television, radio, e-mail, text messages, or iTunes)?
2. Were you able to tune out exterior noises in your environment that could be considered
distracting or even become interruptions (e.g. e-mail or text alerts)?
3. Did you highlight portions of the contract or make notes?
4. Did your concentration wander to other important things you have to do?
5. If you did not understand something, did you make a note so you could somehow resolve it
later?
6. Did you ever feel bored or that reading the whole contract was tedious?
7. Did you read the whole contract (or any of the contract) before you skipped back to these
questions?

As you go forward, you might also want to recognize how you “read” this text. As fundamental
a skill as reading is for most of us, it can often be neglected. We tend to take shortcuts and
even permit distractions to impair our complete concentration. When it comes to the “devil in the
details” of a contract or understanding a text, missing or skipping over something important can
become critical and even costly for the Contract Administrator.
Based on the answers to the above questions, developing what habit or skill might improve your
reading of a contract?

Note: As you do the exercises in this workbook, there will be a temptation to go to the
discussion before completing the exercise, but if you actually try to work through the exercise,
the lessons will be more fulfilling, provide greater insights into your own challenges and
opportunities, and lead to a better understanding of how each of us can be a better Contract
Administrator.

Discussion of Exercise 1.1

It is obvious none of us can be a perfect reader 100% of the time.
1. Reading. Let us be honest. Contracts are boring. Additionally, many of us have the
attitude “you’ve seen one, you’ve seen them all.” Unfortunately, it is the part you do not
see that will usually cause the most problems. The fun is outside on the project itself, but
the devil is in the details we do not know about, so we have to start with the details of the
contract by reading them.
 Getting started 1 5

Not reading the contract can have disastrous consequences

For example, there are notice provisions within almost all contracts.
1. If a Constructor does not read the contract and know the time frame for giving notice,
extensions of time and change orders may be in jeopardy, with the potential of heavy losses.
2. Parties who fail to give proper notice to a bonding company will lose the right to be paid or
have work completed as contracted if the entity for whom the bond was written fails to do so.
3. Not responding in a timely manner can put Design Professionals in jeopardy of becoming
responsible for extensions to the project schedule.
All these possibilities and many more will be explained in later chapters, but for now it is
important to recognize that the consequences of not reading the contract are many and can
affect everyone involved in a construction project.

Sometimes the contract can appear identical, but a subtle shift of phrases or clauses can
make a big difference.

Example: A major Contractor’s staff had failed to recognize a change in the retainage provision of
a contract the Owner had made. Instead of paying the Contractor in full at the end of the project,
the Owner kept 10% of the total contract for two years after completion as an additional “warranty”
provision.

A CASE IN POINT

Reading the contract before signing it is even more important, but sometimes contracts
appear similar and are not carefully read.
When companies grow, they often need to take on more and more work to maintain
the personnel they have employed. Dollar volume becomes a false means of measuring a
successful fiscal year. One such Midwest company that will remain unidentified can serve
as an example for many others throughout the nation. Growing in volume and expanding to
new territories, it was seeking work from a client that had a very good project under a very
tight schedule. Initially, the negotiations were going so well and everyone seemed so eager
to obtain an extremely sizeable project that no one was reading the details of the contract.
Fortunately, a Contract Administrator in the home office asked to see the contract before it
was signed.
Reading through the contract it was discovered that in addition to a very tight schedule
there were severe costs (known as Liquidated Damages, to be discussed in a future
chapter) to be applied against the Contractor if the project was not completed on time.
Had the contract been signed as it was written, losses would have accrued against the
Contractor, but by reading and understanding the contractual obligations before signing,
negotiations were able to take place so the Owner would pay for all the additional costs that
would be necessary to meet the schedule. The CEO of the Contractor told me that incident
changed the approach for all future contracts. No matter how familiar the contract might
appear, they were always to be thoroughly read and red-lined by the home office, including
review by an attorney if necessary.
It is always exciting to think about how much money can be made doing some big
contracts. But just as much or even more can be lost. You do not lose money on the job
you did not get, but you can on the one you should not have taken.
6 1 Getting started

* * * * * * * * * *
One habit you might want to develop is setting some quiet time aside to really understand the
contract. It is often the case that we absorb the most the first time we look at a set of plans.
The same can be true of the first time we sit down to read a contract, but it will never happen if
we are in a setting that allows others to continuously interrupt us.
* * * * * * * * *

Ultimately, reading the contract is a discipline each of us has to develop personally, but careful
study of this text will be a nice start. As a workbook, as well as a textbook, make it your own.
Highlight, make notes, “dog ear” pages, and do whatever you think will help you in relation to
specific passages, concepts, and ideas in the future. Sometimes, merely underlining a portion
of the text will be enough to help us remember it, but more often than not, what we read is
soon forgotten, so an important aspect of making this text yours is to make it easy for you to
refer back to it when you encounter a situation related to contract administration on a future
project.
For this to be an effective balance between a workbook and a textbook you will need to
work through the exercises while you read about the clauses and issues related to contract
administration.
2. Understanding. Once we have read the details, it is important to understand the
requirements. The text of this book in that sense will be similar to most contract
administration texts. It is intended to give a basic understanding of the key clauses
and conditions of contract administration for the construction professional. The critical
difference of this workbook over a typical textbook will be in phase 3 – Execute.
However, understanding the contract is where this text begins. It is not intended to make anyone
a lawyer, but recognizing the difference in future chapters between a penalty and Liquidated
Damages, as well as many other conditions of contract language, tort law, and the vagaries of
statutes and regulatory demands, is important for successful contract administration. As we
fully understand the contract, some issues and items in the contract may be in conflict or, at
the least, ambiguous, and require resolution: the more immediately the Contract Administrator
recognizes and deals with these issues the better it will be for all concerned.

* * * * * * * * * *
Before leaving the Understanding Phase, it is worth emphasizing this text/workbook is for the
Contract Administrator. That title is chosen as an umbrella for many other titles, including,
but not limited to: CEO, President, Project Manager, Project Administrator, Superintendent,
Owner’s Representative or Agent, Project Engineer, and Field Engineer. To the extent the
success of a project or any portion of a project depends on an individual’s performance related
to contractual obligations, that person is a Contract Administrator. Constructors, Owners,
and Design Professionals all administer contracts. Depending on the size of the company
and the size of the project itself, the contract may be administered as a whole or in part by a
single individual or several persons, but the obligation to administer effectively will not be less
important.
* * * * * * * * *

3. Execute. The third phase of contract administration requires execution. There are some
who will basically read the contract simply to understand the fastest way out. Get in and
 Getting started 1 7

get out and get paid. That may sound a bit self-serving, but it is the essence of business.
The key for all of us is that in the process of doing business, we want to stay in business.
To do that, we need to execute effectively, and each of us has different ways of doing
that. One is not necessarily better than another. What is best is the best way each of us
individually can perform our tasks in relation to the contract. This textbook will help you
understand the contract, but the workbook portion will help you understand how you can
execute it to the best of your own abilities, which may not be the way the person who
purchased this text before or after you will administer contracts.
Ultimately, executing a project to a successful conclusion is the goal of everyone who has
ever signed a contract or been assigned to manage a project. Achieving that goal often
becomes the most challenging aspect of any contract. Safely navigating the “maze”
of contract requirements is just as important as erecting the structure or building the
bridge, and often just as dangerous from a corporate perspective. No matter how well
read and intentioned one might be, between concept and reality are many hazards, and
successfully navigating those hazards and ultimately securing final payment can require
extraordinary perseverance and attention to detail. But then, that is what makes you
valuable.
4. Re-apply. If there is one fatal flaw we all have in the construction industry it is that we
run lean and seldom have time to apply what we learned yesterday to what we will do
tomorrow. We need to grow from the mistakes of the past and look for ways to even
improve what we have done well so we can do even better going forward. Unfortunately,
when we get a new contract to administer, we see that it looks similar to the last one, and
we put it aside to get to later – but that later never comes. The curse of knowledge can lead
to disaster if we assume business will be as usual. We need to take what we have learned
and apply it to our future, and in doing so apply new strengths to the ever necessary three
phases of (1) read, (2) understand, and (3) execute.

Developing a new habit is often difficult, but discipline begins first by knowing what
we really want, being true to that desire, and then doing what is necessary to achieve our
goal.

Exercise 1.2
Take a moment
To think about yourself and how you think about others

Please note: In all the exercises related to our own behavior there are no right or wrong
answers, only paths to understanding ourselves better.
1. Think of any problem you have recently had. Write the essence of the problem here:
________________________________________________________________________________
_______________________________________________________________________________
2. Recall who was most responsible for causing the problem and why.
________________________________________________________________________________
________________________________________________________________________________
3. When you started to think or look for a solution, whose needs did you first think about?
________________________________________________________________________________
________________________________________________________________________________
8 1 Getting started

Discussion of Exercise 1.2

In filling out the above three statements it is quite common for people to blame others and to
think about their own needs. In arriving at a successful conclusion, however, it is usually more
effective when we understand and help the other party to also achieve their needs. Abraham
Lincoln pointed out his own method in this regard:

When I am getting ready to reason with a man, I spend one-third of my time thinking about
myself and what I am going to say and two-thirds about him and what he is going to say.

As we are getting started, therefore, we must read the contract. Even if it looks familiar we
need to read it for what might be different. While we read the contract, we can make lists,
highlight sections, and add notes wherever we want. But the contract is not just about what
we need to do. It is actually more about what the other party needs.
Look closely for items and issues in the contract that will affect or relate to:
• schedule
• cost
• quality.

These three critical issues and how we initially can have an effect on them will be essential to
the ultimate success of the project. Some wise fools have said in relation to schedule, cost,
and quality that “you can have any two of the three, but you can’t have all three.”
But there is no doubt an Owner will expect the Contractor to deliver on all three, and to do it all
safely, as well. The Contract Administrator must recognize the contract is not just about what
we need to do. It is more about what the other party needs us to do for them.
Of course, the rest of the book will not be as short and sweet as this first chapter, but do not
overlook or pass up the opportunities already presented.
In addition to the text, visit the Companion Website for additional commentary on topics
related to contract administration.
Ultimately, is it possible that we all could do a bit better when it comes to reading,
understanding, and executing the contract? The reading journey we are about to take together
is not as difficult as building a project, and hopefully navigating the text will not be as boring
as reading a contract. As we learn the cold, hard facts about contracts and the words and
clauses that make them a challenge, we want to also understand our own selves in relation to
contract administration.

A CASE IN POINT

Denise Scott Brown and her husband, Robert Venturi, are considered two of the most
influential Architects of the twentieth century. Denise told me a story of a ritual ceremony
they had witnessed in Japan during which the builder was required to demonstrate remorse
for his failure. Symbolically, the builder committed Seppuku, a form of ritual suicide, also
known as hara-kiri.
It is not hard to imagine decades earlier the ritual might not have been symbolic, but a
para-judicial practice in which the offending builder would have actually committed suicide in
front of an assembled audience.
Of course, whenever I recollect this story my first thought is that I am glad I did not live and
build at such a time in Japan, but upon reflection, the Contract Administrator must always
Another random document with
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course, with considerable elaborations which by no means promote the
correctness, however much the beauty of aspect is improved.

Ancient Mexico. Taken from an Edition of the Letters of Cortés

Published at Luxemburg A.D. m.d.xx.viii.
Very similar to this is the view given in some of Solis’ editions, that of Antwerp,
1704, for instance, wherein is also found a view of Mexico with its surrounding
towns, as Cuitlahuac, Iztapalapan, and others, all grouped closely together within
the main lake! A native plan of the capital, said to have been given by Montezuma
to Cortés, accords little with Spanish descriptions, and is difficult to understand
from its peculiar outline, illustrated with Aztec hieroglyphics. Alaman doubts its
origin and correctness. See Prescott’s Mex. (Mex. ed. 1844), ii. 157. A good copy
of it is given in Carbajal Espinosa, Hist. Mex., ii. 221.
The view in Libro di Benedetto Bordone, Nel qual si ragiona de tutte l’Isole del
mondo, Vinegia, 1528, 73 leaves, is accompanied by an interesting description of
La gran citta di Temistitan, remarkable from being perhaps the first sketch of any
value given in a cosmographic work. It occupies the greater part of folios vi. to x.,
devoted to the terra da Ferdinando Cortese. Five more folios describe the West
Indies and Venezuela region, the only portions of America known to Bordone
when he wrote his book. It was completed in 1521, according to its pontifical
license, although not issued till 1528. The versatile author, who figured both as
artist and professor, died in 1531, and the later issues of the Libro, henceforth
called Isolario, are by editors whose endeavor to keep apace with the demands of
the times is instanced by the edition of 1537, wherein appears a letter on the
conquest of Peru. In the mappemonde of the first edition before me, the smaller
northern part of the new continent is called terra del laboratore, while the southern
part bears the inscription ponẽti môdo nouo. The two are separated at the
Isthmus, in about the latitude of the Mediterranean, by a long strait, at the eastern
mouth of which, on the sectional map of folio vi., is written, stretto pte del mõdo
nouo. Farther east lie the islands Astores, Asmaide, and Brasil. The numerous
sectional wood-cut maps and plans bear the conventional outline of a series of
concave segments, and of the ten referring to different parts of the new world,
seven apply to the Antilles.
The clearest account of Mexico given by any of the conquerors is to be found
in Relatione d’alcvne cose della Nuoua Spagna, & della gran città di Temistitan
Messico, fatta per vn gentil’huomo del Signor Fernando Cortese, wherein the
description of the natives, their manners and customs, their towns, the resources
of the country, and above all, the capital city, is to be found in concise form,
arranged in paragraphs with appropriate headings, and illustrated by a cut of the
great temple, which appears far more correct than those given by most
subsequent writers. A view of the capital is also appended, showing the
surrounding country, and according very nearly with those of the Nuremberg type,
except in the faulty relative position to the neighborhood. Nothing is known of the
author, who is generally referred to as the Anonymous Conqueror, but the opinion
has been hazarded that he was Francisco de Terrazas, mayordomo of Cortés. His
account was evidently written in Spanish, but did not see the light till Ramusio
issued it in Italian under the above title. It forms one of the most valuable
documents for the history of Mexico to be found in this prized collection of voyages
and travels, the first large work of its class. No branch of literature obtained a
greater stimulus from the discovery of Columbus. He it was who broke the barrier
which had confined the ardor of voyagers, and who led the revival of maritime
enterprise, creating a curiosity among the stayers-at-home that could be satiated
only with repeated editions of narratives relating to expeditions and conquests.
The number of these narratives became, within a few years, so large as to require
their grouping into special collections for the sake of cheapness and convenience.
The earliest is probably the Paesi Nouamente retrouati, Et Nouo Mondo da
Alberico Vesputio; By Fracanzo or Fracanzano da Montalboddo, Vicenza, 1507,
mentioned by Tiraboschi, Storia della literatura italiana. This was reproduced in
1508 by Madrignani, at Milan. According to Panzer, Ruchamer issued the same
year a somewhat fuller collection at Nuremberg, under the title of Newe
Unbekanthe landte Und eine Newe weldte, with eight pieces, among them the
voyages of Columbus, Ojeda, Pinzon, and Vespucci. A similar work was issued by
the Italian Angiolelo, in 1519.
The best known of these early collections, and by many regarded as the first
issued in German, is the Novus Orbis Regionvm ac Insolarvm Veteribvs
Incognitarvm; Basileæ apvd Io Hervagivm, Mense Martio, anno M.D.XXXII., 4to,
584 pages, beside unnumbered leaves. ‘La plus ancienne de ces (Latin)
collections,’ says Boucher, Bibl. Univ., i. 55. Although prepared by John Huttich,
the canon of Strasbourg, it is better known under the name of Simon Grynæus,
who wrote the introductory and revised it at the request of Hervagius, the
publisher, a well known bookman, greatly esteemed by Erasmus. Meusel, Bibl.
Hist., iii. pt. i. 221, gives it with punctilious fairness the title of Collectio Huttichio-
Grynæo-Hervagiana, while others apply only the middle name or the last two. The
attribution to Grynæus is greatly due to his fame as a reformer, as the personal
friend of Luther and Calvin, as the discoverer of Livy’s lost books, and as the first
of a long line of scholars celebrated under that name. It is an excellently printed
volume, with quaint head-pieces, and containing as it does so many papers of
which the original editions are now lost, the collection must be esteemed of great
value. The nineteen pieces of original contributions, journals, and borrowed
accounts, include the voyages of Columbus, Alonso, and Pinzon from Madrignani;
Alberici Vesputij nauigationum epitome, and nauigationes IIII.; and Petri Martyris
de insulis. The other narratives relate to Asia, to the Levant, and to Russia. With
some copies is found a mappemonde, but the only genuine one, according to
Harrisse, 294, bears the inscription Terra de Cuba, in the northern part of the new
world, and in the south, Parias, Canibali America Terra Nova, Prisilia, with the
word Asia in large type. Among the several editions the German of 1534, by Herr,
is rarer than the above original, while the Dutch of 1563, by Ablijn, is the most
complete.
After Huttich the voyage collections increased rapidly in number and size, till
they reached the fine specimen of Ramusio, forming not only the first large work of
this class, but, for a long time, the most extensive which bears on America.
Harrisse, 457, very justly observes that ‘the publication of Ramusio’s Raccolta
may be said to open an era in the literary history of Voyages and Navigation.
Instead of accounts carelessly copied and translated from previous collections,
perpetuating errors and anachronisms, we find in this work original narrations
judiciously selected, carefully printed, and enriched with notices which betray the
hand of a scholar of great critical acumen.’ The first issue appeared as Primo
Volvme Delle Navigationi et Viaggi. In Venetia appresso gli heredi di Lvcantonio
Givnti, 1550, folio, 405 leaves. ‘Les Juntes (le) publièrent ... sous la direction de
Jean-Baptiste Ramusio.’ Camus, Mém. Coll. Voy., 7. Neither in this, nor in the third
volume, issued in 1553, nor in the second edition of the first volume, 1554, does
the name of Giambatista Ramusio, Rannusio, or Rhamusio, appear as author, and
it is only in the second volume that the publisher, Tommaso Giunti, resolves to set
aside the modesty of his friend, and to place his name upon the title-page. The
publication of this volume had been delayed till 1559, owing to the death of the
author and to the burning of the printing establishment.
In the preface Giunti refers to the close friendship between them, and extols
Ramusio as a learned man, who had served in foreign countries, acquiring in this
way a perfect knowledge of French and Spanish. He had long been a devoted
student of history and geography, inspired to some extent by the travels of his
uncle, the celebrated Doctor Girolamo Ramusio. As secretary to the powerful
Venetian Council ‘de Signori Dieci,’ he was in a position to maintain
correspondence with such men as Oviedo, Cabot, Cardinal Bembo, and others,
part of which is to be found in Lettere di XIII. Huomini illustri, Venetia, 1565. All this
served him in the formation of the great work upon which he labored during the
last 34 years of his life. He died at Padua, July 10, 1557, 72 years of age.
The first volume relates chiefly to Asia and Africa, but contains Lettere due
and Sommario by Vespucci, and four papers on Spanish and Portuguese
circumnavigation. The contents of the set have been somewhat changed and
increased during the several republications, but the best editions are those of
1588, 1583, and 1565, for the first, second, and third volume respectively. Vol. ii.
of this set relates chiefly to Asia, but is of interest to American students for its
narrative of the much doubted voyages of the brothers Zeno. Its small size
indicates the loss it sustained by the events above referred to. ‘Et nõ vi
marauigliate, se riguardando gli altri due, non uedrete questo Secõdo volume, si
pieno & copioso di scrittori, come il Ramusio già s’haueua pposto di fare, che la
morte ui s’interpose.’ ii. 2.
The third volume is entirely devoted to America, and contains all the most
valuable documents known up to the time of its first issue, such as the relations of
Martyr, Oviedo, Cortés, and his contemporaries in Mexico, Pizarro, Verazzano,
Carthier, the Relation di Nvnno di Gvsman, in several parts, and the valuable
Relatione per vn gentil’huomo del Signor Fernando Cortese. The volume begins
with a learned discourse by Ramusio on ancient knowledge of a land to the west,
and of causes leading to the discovery. At the end of the 1565 edition is a map of
America, showing Lower California as a wide peninsula, and Terra del Fuego
joined to the land of the Circolo Antartico. The comparative crudeness of the
wood-cuts and maps has not made the work much esteemed by collectors, but its
value even now, for reference, is unquestioned. The set was dedicated to
Hieronimo Fracastoro, the great poet and physician, born mouthless, yet so
eloquent. Scaliger, Aræ Fracastoreæ. At the end of the Discorso sopra Perv, iii.
371, Ramusio says: ‘Et questa narratione con breuità habbiamo voluto discorrere
per satisfattione de i lettori, laquale piu distintamente legeranno nel quarto
volume.’ According to Fontanini, Bibl., 274, the material for this volume lay
prepared in manuscript, only to perish in the disastrous fire of November, 1557.
[459] It is still one of the main roads, known under Spanish dominion as Calzada
de Iztapalapan, now as S. Antonio Abad.

[460] Cortés names the well built Mexicaltzinco, Niciaca, and Huchilohuchico (now
Churubusco), to which he gives respectively 3000, 6000, and 4000 to 5000
families. Cartas, 83-4. Gomara, Hist. Mex., 99, names Coioacan instead of
Niciaca, and this change is generally accepted, for the latter name is probably a
mistake by the copyist or printer. Peter Martyr, dec. v. cap. iii.

[461] ‘Mandò que vn Indio en lengua Mexicana, fuesse pregonando que nadie se
atrauessasse por el camino, sino queria ser luego muerto.’ Herrera, dec. ii. lib. vii.
cap. v.

[462] Also referred to as Fort Xoloc. ‘En donde hoy la garita de San Antonio Abad,’
says Ramirez, in Prescott (ed. Mex. 1845), ii. 104.

[463] Herrera, who is usually moderate, swells the figure to 4000.

[464] The avenue is now called el Rastro. The suburb here bore the name of
Huitzitlan. ‘Vitzillan que es cabe el hospital de la Concepcion.’ Sahagun, Hist.
Conq., 23. At Tocititlan, says Duran, Hist. Ind., MS., ii. 439. ‘Junto de la Hermita de
San Anton.’ Torquemada, i. 450. ‘Segun una antigua tradicion conservada en el
hospital de Jesus, el punto en que le encontró fué frente á éste, y por recuerdo del
suceso se hizo la fundacion en aquel parage.’ Alaman, Disert., i. 103; and
Ramirez, note in Prescott (ed. Mex. 1845), ii. 103. The previous authorities
indicate, however, that the meeting took place farther from the centre of the city.

[465] Chimalpain mentions among others Tetlepanquezatl, king of Tlacopan,

Yzquauhtzin Tlacochcalcatl, lord or lieutenant of Tlatelulco, captain-general
Atlixcatzin, son of Ahuitzatl, and Tepehuatzin, son of Titotzin. Hist. Conq., 125.
Sahagun differs slightly in the names. Hist. Conq., 24-5.

[466] For dress, see Native Races, ii. 178 et seq. Cortés gives sandals only to
Montezuma, but it appears that persons of royal blood were allowed to retain them
before the emperor, as Ixtlilxochitl also affirms. Hist. Chich., 295; Oviedo, iii. 500;
Purchas, His Pilgrimes, iv. 1121.

[467] ‘Cenzeño ... y el rostro algo largo, è alegre.’ Bernal Diaz, Hist. Verdad., 67.
‘Motecçuma quiere dezir hõbre sañudo y graue.’ Gomara, Hist. Mex., 103; Acosta,
Hist. Ind., 502-3. It is from this, probably, that so many describe him as serious in
expression. A number of portraits have been given of the monarch, differing
greatly from one another. The best known is Prescott’s, taken from the painting for
a long time owned by the Condes de Miravalle, the descendants of Montezuma;
but this lacks the Indian type, and partakes too much of the ideal. Clavigero’s,
Storia Mess., iii. 8, appears more like him, though it is too small and too roughly
sketched to convey a clear outline. Far better is the half-size representation
prefixed to Linati, Costumes, which indeed corresponds very well with the text
description. The face in Armin, Alte Mex., 104, indicates a coarse Aztec warrior,
and that in Montanus, Nieuwe Weereld, 244-5, an African prince, while the native
picture, as given in Carbajal Espinosa, Hist. Mex., ii. 6, is purely conventional. The
text description, based chiefly on Bernal Diaz, is not inappropriate to the weak,
vacillating character of the monarch. Clavigero makes him nearly 54 years old,
and Brasseur de Bourbourg 51; but 40, as Bernal Diaz calls him, appears to be
more correct.

[468] ‘Ellos y él ficieron asimismo ceremonia de besar la tierra.’ Cortés, Cartas,

85.

[469] ‘De margaritas y diamantes de vidrio.’ Id. ‘Que se dizen margagitas.’ Bernal
Diaz, Hist. Verdad., 65.

[470] Solis assumes that Cortés was repelled when he sought to place the
necklace on Montezuma. The latter chides the jealous princes, and permits him.
Hist. Mex., i. 370. ‘Pareceme que el Cortès ... le daua la mano derecha, y el
Monteçuma no la quiso, è se la diò â Cortès.’ Bernal Diaz, Hist. Verdad., 65. This
phrase, which applies equally to offering the right hand, has been so understood
by those who notice it; but as this would be confusing, Vetancurt, for instance,
assumes improbably that Marina offers her right hand to Montezuma, which he
disregards, giving his instead to Cortés. Teatro Mex., pt. iii. 129.

[471] Cortés, Cartas, 85. Ixtlilxochitl has it that Cacama was left with him; and
Bernal Diaz, that the lord of Coyuhuacan also remained. According to Cortés,
Montezuma accompanied him all the way to the quarters in the city, keeping a few
steps before. Gomara and Herrera follow this version. But Bernal Diaz states
explicitly that he left the Spaniards to follow, allowing the people an opportunity to
gaze; and Ixtlilxochitl assumes that he goes in order to be ready to receive him at
the quarters. Hist. Chich., 295. It is not probable that Montezuma would expose
himself to the inconvenience of walking so far back, since this involved
troublesome ceremonies, as we have seen, not only to himself but to the
procession, and interfered with the people who had come forth to gaze. The native
records state that Montezuma at once surrendered to Cortés the throne and city.
‘Y se fueron ambos juntos á la par para las casas reales.’ Sahagun, Hist. Conq.,
23-4. Leading Cortés into the Tozi hermitage, at the place of meeting, he made the
nobles bring presents and tender allegiance, while he accepted also the faith.
Duran, Hist. Ind., MS., ii. 440-1.

[472] About 6000 in all. ‘Nosotros aun no llegauamos á 450 soldados.’ Bernal
Diaz, Hist. Verdad., 65. Prescott places the number at about 350.
[473] According to Sahagun not a soul was to be seen, either upon the causeway
or along the streets, the people having taken this manner to express their
indignation at the semi-forcible entry of the Spaniards. Montezuma came to
receive them purely out of a feeling of humanity. Startled at this solitude, Cortés
fears dangers, and vows, if all goes well, to build a church. This was the origin,
says Bustamante, of the Hospital de Jesus. Sahagun, Hist. Conq. (ed. Mex. 1840),
79-84. See note 12, this chapter. Brasseur de Bourbourg accepts this view. Hist.
Nat. Civ., iv. 212-13. Still Sahagun describes the interview with Cortés as most
cordial. He is in fact contradictory, and it is evident that the order issued to the
people to keep the narrow causeway clear, and the etiquette which required them
to give way to the emperor, have been hastily interpreted by the chronicler into
‘deserted streets’ and ‘popular indignation.’ Had the citizens objected to receive
the strangers, the bridges could have been raised against them.

[474] ‘Au coin de la rue del Indio triste et de celle de Tacuba,’ says Humboldt,
Vues, i. 58, prudently, without attempting to give its extent. Ramirez and Carbajal
do so, however, and in allowing it about the same length as the temple inclosure,
they place it right across the eastern avenue of the city, which like the other three
is admitted to have terminated at one of the temple gates. Carbajal Espinosa, Hist.
Mex., ii. 222; Ramirez, notes in Prescott’s Mex. (ed. Mex. 1845), ii. app. 103.
‘Donde hoy las Casas de el Marqués del Valle,’ says Lorenzana, in Cortés, Hist.
N. Esp., 86, a statement disputed by later writers. Prescott quotes Humboldt, but
evidently does not understand him, for he places the palace ‘facing the western
gate,’ which is not only on the wrong side, but across the western avenue. Mex., ii.
79. ‘Adonde ... tenia el gran Monteçuma sus grandes adoratorios de idolos ... nos
lleuaron á aposentar á aquella casa por causa, que como nos llamauã Teules, é
por tales nos tenian, que estuuiessemos entre sus idolos.’ Bernal Diaz, Hist.
Verdad., 66. The idea of being regarded as a god seems to have pleased the old
soldier immensely.

[475] They doubtless formed a double necklace, with gold setting and pendants.
Cortés writes that on the way to the palace Montezuma halted to place them round
his neck. Cartas, 85; Gomara, Hist. Mex., 100-1; Sahagun, Hist. Conq., 23.

[476] ‘A throne of gold,’ is Peter Martyr’s briefer yet grander term. dec. v. cap. iii.

[477] Hist. Verdad., 65-6; Herrera, dec. ii. lib. vii. cap. v.; Sahagun, Hist. Conq., 25-
6.

[478] Bernal Diaz states that the emperor always addressed him as Malinche, and,
indeed, it was common among Mexicans to address persons by a name given
them in later life in connection with some peculiarity, deed, or incident. Hence
Cortés, as master of the prominent female interpreter, received a name implying
that relationship.
[479] For which see Native Races.

[480] Cortés, Cartas, 86. This is in substance the speech of Montezuma, as given
by native as well as Spanish records; yet it appears improbable that the emperor
should have been so ready, at the first interview, and in presence of his courtiers,
to humble himself so completely before a few strangers whom he regarded as
mortals. See note 19. ‘Myself, my wife and children, my house, and all that I
possess, are at your disposal,’ says the Spaniard, even in our day, to the guest
whom he wishes to impress with his hospitality. Perhaps Montezuma was equally
profuse with hollow words, which have been recorded as veritable offers.

[481] Cortés, Cartas, 86-7. Bernal Diaz introduces this paragraph during the next
interview.

[482] Id. ‘Á cada vno de nuestros Capitanes diò cositas de oro, y tres cargas de
mantas de labores ricas de plumas, y entre todos los soldados tambien nos diò á
cada vno á dos cargas de mantas.’ Bernal Diaz, Hist. Verdad., 66; Gomara, Hist.
Mex., 101-2; Peter Martyr, dec. v. cap. iii.; Duran, Hist. Ind., MS., ii. 441-2;
Herrera, dec. ii. lib. vii. cap. vi.; Torquemada, i. 452-3; Ixtlilxochitl, Hist. Chich.,
296; Peralta, Not. Hist., 107-8. Acosta implies that Cortés now reconciled the
Tlascaltecs with the Aztecs. Hist. Ind., 521.

[483] ‘Eramos hermanos en el amor, y amistad, é personas mui principales,’ is the

way Bernal Diaz expresses it. Hist. Verdad., 66.

[484] Gomara, Hist. Mex., 102-3. ‘Los haçia proveer luego, assi de mugeres de
serviçio, como de cama, é les daba á cada uno una joya que pessaba hasta diez
pessos de oro.’ Oviedo, iii. 500-1.

[485] Vetancvrt, Teatro Mex., pt. iii. 129. Sahagun, followed by Acosta, Brasseur
de Bourbourg, and others, states that the artillery was discharged at night to
startle the natives. Hist. Conq. (ed. 1840), 85.

[486] It is so depicted in the old Nuremberg view of the city, already referred to.
Ramirez, Carbajal Espinosa, and Alaman give the extent, and the latter enters into
quite a lengthy account of its situation with respect to present and former outlines
of the quarter. Disert., ii. 202, etc.; Carbajal Espinosa, Hist. Mex., ii. 221-2;
Ramirez, notes in Prescott’s Mex. (ed. Mex. 1845), ii. app. 103. Humboldt places it
opposite the southern half of the western temple side, Essai Pol., i. 190, but that
site is assigned by all the above historians to the old palace of Montezuma, so
called—not the Axayacatl where Cortés was quartered. The mistake is probably
owing to his ignorance of the fact that the residence of the Cortés family stood first
on the site of the new palace of Montezuma, whence it was moved to that of the
old palace when the government bought the former.
[487] The Spaniards were also ‘costretti a scalzarsi, ed a coprirsi gli abiti sfarzosi
con vesti grossolane,’ says Clavigero, Storia Mess., iii. 83, but that is unlikely.

[488] ‘Con esto cumplimos, por ser el primer toque.’ Bernal Diaz, Hist. Verdad.,
67.

[489] ‘Â nosotros los soldados nos diò á cada vno dos collares de oro, que valdria
cada collar diez pesos, è dos cargas de mantas.’ The rest went to their officers. Id.
 CHAPTER XVII.
CAPTURE OF THE EMPEROR.

November, 1519.

Cortés Inspects the City—Visits the Temple with Montezuma—Discovery

of Buried Treasure—Pretended Evidences of Treachery—Cortés
Plans a Dark Deed—Preparations for the Seizure of Montezuma—With
a Few Men Cortés Enters the Audience-Chamber of the King—
Persuasive Discourse—With Gentle Force Montezuma is Induced to
Enter the Lion’s Den.

Cortés failed not to make diligent inquiries and examinations into

the approaches, strength, and topography of the city, but he longed
for a view from one of the great temples which, rising high above all
other edifices, would enable him to verify his observations. He also
desired to obtain a closer insight into the resources of the place.
With these objects he sent to Montezuma for permission to make a
tour through the town to the Tlatelulco market and temple.[490] This
was granted; and attended by the cavalry and most of the soldiers,
all fully armed, Cortés set out for that suburb, guided by a number of
caciques. It was here that the largest market-place in the city was
situated.[491]
From this centre of trade the Spaniards proceeded to the lofty
temple, which occupied one end of the Tlatelulco market-place,[492]
and whither Montezuma had already gone to prepare for their
reception, and to propitiate the idols for the intrusion by prayers and
sacrifices. He hoped, no doubt, that his presence would prove a
check upon the impulsive hands and tongues of the guests.
Dismounting at the gate, the riders advanced with most of the
soldiers through the temple court, and climbed the one hundred and
more steps which led to the summit. Some priests and chiefs had
been sent by Montezuma to assist Cortés to ascend, but he
preferred to trust to himself. This pyramid, unlike that in Mexico
proper, appears to have had but one continuous stair-way leading up
the western slope.[493] The first sight which met the Spaniards on
reaching the summit was the sacrificial cage for holding victims, and
a large snake-skin drum, whose sombre tones gave appropriate
effect to the horrible rites enacted around it.
Montezuma came out of one of the chapels to welcome them,
expressing a fear that they must have been fatigued by the ascent,
but Cortés hastened to assure him that Spaniards never tired.
Calling their attention to the view here afforded of the city and its
surroundings, he stood silent for a while to let the beauteous vision
work its own enchantment. Around on every side spread the lake
and its connecting waters, bordered with prairies and fields. Forests
and towns intermingled on the green carpet, and extended far away
till they disappeared in the shadows of the hills. The soldiers
recognized the settlements and towns which they had passed, and
saw the causeways which on three sides connected with the
mainland. Beneath them lay a vast expanse of terraced roofs,
intersected by streets and canals teeming with passengers and
canoes. Here and there rose palatial edifices and towering temples,
interspersed with open squares, and with gardens shaded by trees
and relieved by the silvery jets of the fountain. At their feet lay the
market through which they had just passed, alive with busy
Lilliputians, whose talk and cries reached their ears in a confused
murmur. Cortés could not fail to be impressed by scenes so varied
and so attractive, but the æsthetic aspect was in him speedily
overshadowed by the practical sense of the military leader. Then
rose on high his soul as he thought to secure for Spain so rich an
inheritance as the great city with its vast population, and turning to
Father Olmedo he suggested that the site ought to be obtained for a
church; but the prudent friar remonstrated that the emperor
appeared to be in no mood to listen to such a proposal.
Cortés accordingly contented himself with asking to see the
idols, and after consulting the priests Montezuma led them past the
piscina with the vestal fire into the chapel. Withdrawing a tasselled
curtain he displayed the images, glittering with ornaments of gold
and precious stones, which at first drew the attention of the
beholders from the hideous form and features. Before them stood
the stone of sacrifice, still reeking with gore, and around lay the
instruments for securing the human victim and for tearing open the
breast. On one altar could be seen three hearts, and on the other
five, offered to the idols, and even now warm and palpitating with life.
The interior walls were so smeared with human blood as to obscure
their original color, and to emit a fetid odor which made the
Spaniards glad to reach the open air again.
Forgetting his prudence, Cortés expressed his wonder to
Montezuma that so great and wise a prince should worship
abominable demons like these. “Let me but plant a cross on this
summit,” he said, “and within the chapel place an image of the virgin,
and you shall behold the fear of the idols.” The eyes of the priests
were at this aflame with anger, and the emperor could hardly
suppress his indignation as he replied, “Malinche, had I suspected
that such insults were to be offered, I would not have shown you my
gods. They are good; they give us health, sustenance, victory, and
whatever we require. We adore them, and to them make our
sacrifices. I entreat you say not another word against them.”
Observing the effect his remarks had produced, Cortés thought it
best to restrain himself, and to express regrets at his hastiness.
Then with a forced smile he said that it was time to depart.
Montezuma bade them farewell. As for himself, he must remain to
appease the idols for the insult offered.[494]
Not at all abashed by his rebuff at the temple, Cortés asked
Montezuma to let him erect a church in his own quarters. Glad
probably at finding the Spanish pretensions in this respect so
modified, he not only assented, but gave artisans to aid in the work.
This was concluded within three days, and services henceforth held
therein, at which the Indians were always welcomed. A cross was
also erected before the entrance, so that the natives might be
impressed by the devotion of their visitors.
This effort in behalf of the faith was not to go unrequited. While
looking for the best site for the altar, says Bernal Diaz, Yañez, the
carpenter, discovered signs of a door-way recently closed and
plastered over. Cortés was told of this, and ever on the guard against
plots, he ordered the wall to be opened. Aladdin on entering the cave
could not have been more surprised than the Spaniards were on
stepping into the chamber there revealed. The interior fairly blazed
with treasures; bars of gold were there, nuggets large and small,
figures, implements, and jewelry of the same metal; and then the
silver, the rare bejewelled and embroidered fabrics, the prized
chalchiuite and other precious stones! Cortés allowed the favored
beholders to revel in the ecstasy created by the sight, but to their
greed he set a check. He had reasons for not disturbing the
treasures at this time, and gave orders to restore the wall, so that no
suspicions might be aroused that the deposit had been discovered.
[495]

One reason with Cortés for not touching the treasures was to
hold out an alluring bait to those who, more prone to listen to the
warnings of timid allies than to the ambitious promptings of their
leader, were ever ready to take alarm and urge withdrawal from a
position which they regarded as dangerous. Unbending in his
resolution, the general had nevertheless grasped all the perils of
their position. Hitherto no firm ground existed for alarm. They had
been a week in the capital, and were still receiving from all hands the
kindest treatment and the most generous hospitality. Cortés was
aware, however, that this depended on the favor of the emperor,
whose power over the submissive people resembled that of a god,
and whose person appeared to them as sacred as his will was
absolute. He had also learned that this monarch was a man
affrighted by his superstitions, and often influenced by trifling
circumstances; ready to strike where he had fawned the moment
before, and little bound by words or pledges, particularly when they
involved his own sovereignty. One misstep by the Spanish leader or
any of his men, ill-behaved and importunate as they were, according
to his own statement, might precipitate the change. The presence of
the hated Tlascaltecs was itself a burden, and the drain for
supporting the self-invited guests would soon be felt. The religious
topic had already created a momentary irritation, which might rankle
and grow under the promptings of the priests, who must naturally
object to rival interference.
Emperor and subjects were evidently restrained only by the
military prestige of the Spaniards, and to some extent by the belief in
their divine mission; but they were also aware that, whatever might
be the prowess of the visitors and the power of their weapons and
steeds, they were mortals, for this had been proved quite lately by
the unfortunate defeat of Escalante, and in the Nautla campaign.
The soldiers of Montezuma had but to raise the bridges of the
causeways and cut off retreat, then stop supplies and reduce them
by starvation. True, there was the fate of Cholula before the
Mexicans; but they had gained experience, and could mass vastly
more warriors and arms, while the Spaniards would have no allies in
reserve to operate in the rear. Besides, what mattered the
destruction of a part, or even of the entire city, when thereupon
depended the safety of the throne, menaced by a horde of cruel,
avaricious monsters!
Cortés had considered all these points, and knew the
expediency of resolute action. He had undertaken an enterprise
wherein one bold move must be supported by another, and to these
all means had to be subordinate. He had not come all this way to
place himself within the power of a suspicious and vacillating despot,
nor to waste his time in waiting for what events might bring forth,
while his enemies, headed by Velazquez, were arranging for his
overthrow. He had formed his plans long beforehand, as indicated in
his first letter to the king, wherein he promised to have the great
Montezuma “a prisoner, a corpse, or a subject to the royal crown of
your Majesty.”[496] Conquest, followed by settlement and conversion,
was his aim. It would not pay him to play for a smaller stake.
Just now rumors began to circulate tending to stir anew the fears
which Montezuma’s friendly and hospitable demeanor had soothed.
One was that the nobles had actually prevailed on the emperor to
break the bridges, to arm the whole city, and to fall on the Spaniards
with all available strength.[497] Soldiers were readily found who
fancied that the mayordomo was less obsequious than formerly, and
that he gave scantier supplies. It was also understood from
Tlascaltecs that the populace appeared less friendly during the last
day or two. These reports may have sprung wholly from timid minds
still agitated by the warnings uttered by Tlascaltecs before the
departure from Cholula, or they may have been promoted by Cortés
himself in furtherance of his plans. He at any rate seized the
pretence to hold a council, composed of Alvarado, Leon, Ordaz, and
Sandoval, together with twelve soldiers whose advice he most
valued, “including myself,” says Bernal Diaz. His chief reason was to
persuade them of the necessity for the measure he had resolved on,
and to win their hearty coöperation. Laying before them the current
rumors which confirmed the warnings formerly received, and
representing the unreliable and suspicious character of Montezuma,
his great power, and the peculiar position and strength of the city, he
concluded by proposing the daring venture of seizing the emperor
and holding him a hostage.[498]
Here was folly run mad! Four hundred men, after penetrating
formidable barriers and gaining the very heart of a great empire,
whose vast armies could oppose a thousand warriors to every
Spaniard there, coolly propose to take captive the worshipped
monarch of this vast realm, and then to defy its millions of subjects!
The wildest tales of mediæval knights hardly equal this project.
Reckless as was the conception, it was the fruit of yet greater
audacity. Cortés reared his structure of folly insensate upon the
platform of still greater insensate folly. If it was true that he had
practically placed himself in the position of a captive, then he would
cut the knot by capturing the captor. And yet, foolhardy as might
appear the scheme when coolly viewed from the isle of Cuba,
situated as the Spaniards were, it was doubtless the best they could
do; it was doubtless all they could do. The efficiency of hostages had
been frequently tried by the conquerors in the Antilles, and the
opportune seizure of the Cempoalan lord had not been forgotten; but
this had been effected under the impulse of the moment, while the
chieftain was surrounded by Spaniards. Here was required not only
a calm resolution, unflinching to the end, but a well laid stratagem.
Cortés stood prepared with both.
Producing the letter from Villa Rica, which had been kept secret
all this time, he gave an account of the unfortunate successes at
Almería, describing in exaggerated terms the treachery of
Quauhpopoca, and consequently of Montezuma as his master, and
stirring the feelings of the council by an appeal to avenge their
comrades.[499] Here was a pretence[500] which served also to set
aside the suggestion that the emperor would be only too glad to let
them depart in peace, for it was argued that a retreat now, since the
Spaniards stood revealed as mortals, would draw upon them not
only the contempt of allies and countrymen, but a general uprising,
with the most fatal results. Retreat meant also the surrender of all
hopes of wealth, preferment, and honor, to be followed by
punishment and disgrace for their irregular proceedings so far. With
Montezuma in their power, they possessed a hostage whose
sacredness in the eyes of his subjects insured their safety, and made
the people pliable to their will, while disaffected vassals could be
secured by alliances, or by the promise of reforms. Should the
seizure result in the monarch’s death, the succession would
doubtless become the cause of division and dissension, in the midst
of which the Spaniards might influence affairs in their own interest.
Thus were answered the various objections raised.
As for the manner of seizure, the safest plan would doubtless be
to inveigle Montezuma to their quarters and there detain him; but this
would cause delay, and might arouse suspicion,[501] and, since
prompt action was considered necessary, the best way would be to
seize him in his own palace. This was agreed upon, and the same
evening the facts and arguments were effectively presented to the
men and preparations made.
“All night,” writes Bernal Diaz, “we passed in earnest prayer, the
priests devoutly imploring God to so direct the undertaking that it
might redound to his holy service.”[502]
In the morning Cortés sent to announce that he would visit the
emperor. He then despatched a number of small parties as if for a
stroll, with orders to keep themselves in and near the palace, and on
the way to it, ready for any emergency. Twenty-five soldiers were
told to follow him, by twos and threes, into the audience-chamber,
whither he preceded them with Alvarado, Sandoval, Velazquez de
Leon, Francisco de Lugo, and Ávila.[503] All were armed to the teeth,
[504]and as the Mexicans had been accustomed to see them thus
equipped no suspicions were aroused. Montezuma proved on this
occasion to be particularly gracious, and after a brief chat he offered
several presents of finely wrought gold, and to Cortés he presented
one of his daughters, the captains being given women of rank from
his own harem, which was a mark of great favor.[505] Cortés sought
to decline for himself the favor, on the ground that he could not
marry. Montezuma nevertheless insisted, and he yielded not
unwillingly.[506]
Assuming a serious tone, the latter now produced the letter from
Villa Rica, and informed the emperor that he had received an
account of the outrageous conduct of Quauhpopoca, resulting in the
death of some of his men, and that he, the sovereign, had been
accused of being the instigator. Montezuma gave an indignant
denial,[507] and Cortés hastened to assure him that he believed the
charge to be false, but as commander of a party he had to account
for the men to his king, and must ascertain the truth. In this
Montezuma said he would aid him; and calling a trusted officer, he
gave him a bracelet from his wrist bearing the imperial signet—a
precious stone graven with his likeness[508]—bidding him to bring
Quauhpopoca and his accomplices, by force, if necessary.[509]
Cortés expressed himself pleased, but added that, in order to cover
his responsibility as commander, and to convince his men that the
emperor was indeed as innocent as Cortés believed him to be, it
would be advisable for him to come and stay at their quarters till the
guilty parties had been punished.[510]
Montezuma was dumfounded at this unhallowed impudence. He,
the august sovereign, before whom even princes prostrated
themselves, at whose word armies sprang into existence, and at
whose name mighty rulers trembled, he to be thus treated by a score
of men whom he had received as guests and loaded with presents,
and this in his own palace! For a moment he stood mute, but the
changing aspect of his countenance revealed the agitation within. At
last he exclaimed that he was not the person to be thus treated. He
would not go. They could always find him at his palace.
Cortés pleaded that his presence among the soldiers was
necessary, not merely as a declaration of his innocence, but to allay
the rumors which had reached them that he and his people were
plotting for their destruction. Montezuma again made an indignant
denial; but added that, even if he consented to go, his people would
never allow it. His refusal, insisted the general, would rouse the
worst suspicions of his men, and he could not answer for their acts.
Mexico might meet the fate of Cholula, and he with it.[511]
Montezuma now began to implore, and offered to surrender his
legitimate children as hostages if he were but spared the disgrace of
being made a prisoner. This could not be, was the reply. The
Spanish quarter was his own palace, and he could readily persuade
his subjects that he went there for a short time of his own accord, or
at the command of the gods.[512] He would be treated with every
consideration, and should enjoy his usual comfort, surrounded by
favorites and councillors. The plan involved no change beyond that
of residence, to a place where he would be under secret
surveillance.

Montezuma still objected, and time was passing.[513] The

companions of Cortés becoming nervous at this delay, Velazquez de
Leon exclaimed in his stentorian voice: “Why so many words, your
worship? Let us either carry him off or despatch him. Tell him that if
he calls out or creates a disturbance we shall kill him!”[514] Turning in
alarm to Marina, Montezuma inquired what was meant. Full of pity
for the troubled monarch, she told him that the men were becoming
impatient at his delay. She besought him, as he valued his life, to
accede to their wishes and go with them. He would be treated with
all the honor due to his rank. A glance at the frowning faces of the
Spaniards confirmed the mysterious words of the interpreter, and
chilled him to the heart. He had heard too many accounts of the
resolution and cruelty of these men not to believe them capable of
anything. Were he to call for aid they would no doubt kill him and
destroy the city; for few as they were they had proved themselves
equal to hosts of natives.
The unhappy monarch yielded, since it was so decreed—by the
sublime audacity of this score of adventurers. The spirit of Axayacatl
had evidently not survived in the son, and the prestige of his early
career as military leader had dwindled to a mere shadow in the
effeminate lap of court-life.[515] Summoning his attendants, he
ordered a litter brought. Everything had been quietly conducted, and
since none ventured to question the emperor, his command was
silently obeyed; but the mysterious interview and his agitation roused
their suspicions, and the rumor spread that something extraordinary
was about to happen. Wondering and murmuring crowds had
already collected along the route between the two palaces when the
emperor appeared. On seeing the sorrowing faces of the favorites
who bore him, and observing how closely it was surrounded by the
Spanish soldiers who acted as guard of honor, their fears became
confirmed. The distance to the quarters was too short, however, and
the news had not yet travelled far enough, to allow a serious
demonstration.[516] But not long after the plaza in front of it was
blocked with an excited multitude, and a number of leading
personages and relatives made their way into the presence of their
sovereign, asking with tearful eyes and knitted brows how they might
serve him. They were ready to lay down their lives to rescue him. He
assured them with a forced smile that there was no cause for alarm.
Too proud to disclose his pusillanimity, he readily echoed the words