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But, in another point of view, it will be allowed that these ancient institutions contributed especially to preserve and elevate the vigorous activity of the individual man. The very desire which still animated all their political efforts, to train up temperate and nobleminded citizens, imparted a higher impulse to their whole spirit and character. With us, it is true, man is individually less restricted; but the influence of surrounding circumstances Edition: And yet the peculiar nature of the limitations imposed on freedom in our States; the fact that they regard rather what man possesses than what he really is, and that with respect to the latter they do not cultivate, even to uniformity, the physical, intellectual, and moral faculties; and lastly and especially, the prevalence of certain determining ideas, more binding than laws, suppress those energies which are the source of every active virtue, and the indispensable condition of any higher and more various culture.
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With the ancients, moreover, the increase of force served to compensate for their uniformity; but with the moderns uniformity is aggravated by the evil of diminished energy.
This difference between the States of antiquity and those of our own times, is in general thoroughly evident. Whilst in these later centuries, the rapid strides of progress, the number and dissemination of artistic inventions, and the enduring grandeur of establishments, especially attract our attention; antiquity captivates us above all by that inherent greatness which is comprised in the life of the individual, and perishes along with him,—the bloom of fancy, the depth of thought, the strength of will, the perfect oneness of the entire being, which alone confer true worth on human nature.
Their strong consciousness of this essential worth of human nature, of its powers and their consistent development, was to them the quick impulse to every manifestation of activity; but these seem to us but as abstractions, in which the sense of the individual is lost, or at least in which his inner life is not so much regarded as his ease, his material comfort, his happiness.
The ancients sought for happiness in virtue; the moderns have too long been endeavouring to develope the latter from the Edition: The vigilant solicitude for the freedom of private life has in general led to the former proposition; while the idea that the State can bestow something more than mere security, and that the injurious limitation of liberty, although a possible, is not an essential, consequence of such a policy, has disposed many to the latter opinion.
And this belief has undoubtedly prevailed, not only in political theory, but in actual practice. Ample evidence of this is to be found in most of the systems of political jurisprudence, in the more recent philosophical codes, and in the history of Constitutions generally.
The introduction of these principles has given a new form to the study of politics as is shown for instance by so many recent financial and legislative theoriesand has produced many new departments of administration, as boards of trade, finance, and national economy. But, however generally these principles may be accepted, they still appear to me to require a more radical investigation; and this can only proceed from a view of human nature in the abstract, and of the highest ends of human existence.
The true end of Man, or that which is prescribed by the eternal and immutable dictates of reason, and not suggested by vague and transient desires, is the highest and most harmonious development of his powers to a complete and consistent whole. Freedom is the grand and indispensable condition which the possibility of such a development presupposes; but there is besides another essential,—intimately connected with freedom, it is true,—a variety of situations.
Even the most free and self-reliant of men is thwarted and hindered in his development by uniformity of position. But as it is evident, on the one hand, that such a diversity is a constant result of freedom, and on the other, that there is a species of oppression which, without imposing restrictions on man himself, gives a peculiar impress of its own to surrounding circumstances; these two conditions, of freedom and variety of situation, may be regarded, in a certain sense, as one and the same.
Still, it may contribute to perspicuity to point out the distinction between them. Every human being, then, can act with but one force at the same time: It would therefore seem to follow from this, that man is inevitably destined to a partial cultivation, since he only enfeebles his energies by directing them to a multiplicity of objects.
But we see the fallacy of such a conclusion when we reflect, that man has it in his power to avoid this one-sideness, Edition: That which is effected, in the case of the individual, by the union of the past and future with the present, is produced in society by the mutual co-operation of its different single members; for, in all the stages of his existence, each individual can exhibit but one of those perfections only, which represent the possible features of human character.
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It is through such social union, therefore, as is based on the internal wants and capacities of its members, that each is enabled to participate in the rich collective resources of all the others.
The experience of all, even the rudest, nations, furnishes us an example of a union thus formative of individual character, in the union of the sexes. And, although in this case the expression, as well of the difference as of the longing for union, appears more marked and striking, it is still no less active in other kinds of association where there is actually no difference of sex; it is only more difficult to discover in these, and may perhaps be more powerful for that very reason.
If we were to follow out this idea, it might perhaps conduct us to a clearer insight into the phenomena of those unions so much in vogue among the ancients, and more especially the Greeks, among whom we find them countenanced even by the legislators themselves: I mean those so frequently, but unworthily, classed under the general appellation of ordinary love, and sometimes, but always erroneously, designated as mere friendship.
The efficiency of all such unions as instruments of cultivation, Edition: This individual vigour, then, and manifold diversity, combine themselves in originality; and hence, that on which the consummate grandeur of our nature ultimately depends,—that towards which every human being must ceaselessly direct his efforts, and on which especially those who design to influence their fellow men must ever keep their eyes, is the Individuality of Power and Development.
Just as this individuality springs naturally from the perfect freedom of action, and the greatest diversity in the agents, it tends immediately to produce them in turn.
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Even inanimate nature, which, proceeding in accordance with unchangeable laws, advances by regular grades of progression, appears more individual to the man who has been developed in his individuality. He transports himself, as it were, into the very centre of nature; and it is true, in the highest sense, that each still perceives the beauty and rich abundance of the outer world, in the exact measure in which he is conscious of their existence in his own soul.
How much sweeter and Edition: If we attempt to confirm these principles by a closer application of them to the nature of the individual man, we find that everything which enters into the latter, reduces itself to the two elements of Form and Substance. The purest form, beneath the most delicate veil, we call Idea; the crudest substance, with the most imperfect form, we call sensuous Perception.
Form springs from the union of substance. The richer and more various the substance that is united, the more sublime is the resulting form. A child of the gods is the offspring only of immortal parents: The intensity of power, moreover, increases in proportion to the greater variety and delicacy of the substance; since the internal cohesion increases with these. The substance seems as if blended in the form, and the form merged in the substance.
But the force of the generation depends upon the energy of the generating forces. In the vegetable world, the Edition: Everything conspires to the beautiful consummation of the blossom. That which first shoots forth from the little germ is not nearly so exquisite and fascinating. But destiny has not blessed the tribe of plants in this the law and process of their growth. The flower fades and dies, and the germ of the fruit reproduces the stem, as rude and unfinished as the former, to ascend slowly through the same stages of development as before.
But when, in man, the blossom fades away, it is only to give place to another still more exquisitely beautiful; and the charm of the last and loveliest is only hidden from our view in the endlessly receding vistas of an inscrutable eternity.
Now, whatever man receives externally, is only as the grain of seed. It is his own active energy alone that can convert the germ of the fairest growth, into a full and precious blessing for himself. It leads to beneficial issues only when it is full of vital power and essentially individual. The highest ideal, therefore, of the co-existence of human beings, seems to me to consist in a union in which each strives to develope himself from his own inmost nature, and for his own sake.
The requirements of our physical and moral being would, doubtless, bring men together into communities; and even as the conflicts of warfare are more honourable Edition: And is it not exactly this which so unspeakably captivates us in contemplating the life of Greece and Rome, and which in general captivates any age whatever in the contemplation of a remoter one?
Is it not that these men had harder struggles to endure with the ruthless force of destiny, and harder struggles with their fellow men?
Every later epoch,—and in what a rapid course of declension must this now proceed! It is in this we find one of the chief causes which render the idea of the new, the uncommon, the marvellous, so much more rare,—which make affright or astonishment almost a disgrace,—and not only render the discovery of fresh and, till now, unknown expedients, far less necessary, but also all sudden, unpremeditated and urgent decisions. For, partly, the pressure of outward circumstances is less violent, while man is provided with more ample means for opposing them; partly, this resistance is no longer possible with the simple forces which nature bestows on all alike, fit for immediate application; and, in fine, partly a higher and more extended knowledge renders inventions less necessary, and the very increase of learning serves to blunt the edge of discovery.
It is, on the Edition: To the human family at large, the same has happened as to the individual: And in view of this sacrifice of energy from generation to generation, we might regard it as a blessed dispensation if the whole human species were as one man; or the living force of one age could be transmitted to the succeeding one, along with its books and inventions. But this is far from being the case. It is true that our refinement possesses a peculiar force of its own, perhaps even surpassing the former in strength, just in proportion to the measure of its refinement; but it is a question whether the prior development, through the more robust and vigorous stages, must not always be the antecedent transition.
Still, it is certain that the sensuous element in our nature, as it is the earliest germ, is also the most vivid expression of the spiritual. Whilst this is not the place, however, to enter on the discussion of this point, we are justified in concluding, from the other considerations we have urged, that we must at least preserve, with the most eager solicitude, all the force and individuality we may yet possess, and cherish aught that can tend in any way to promote them.
I therefore deduce, as the natural inference from what has been argued, that reason cannot desire for man any other Edition: From this principle it seems to me, that Reason must never yield aught save what is absolutely required to preserve it. It must therefore be the basis of every political system, and must especially constitute the starting-point of the inquiry which at present claims our attention.
Keeping in view the conclusions arrived at in the last chapter, we might embody in a general formula our idea of State agency when restricted to its just limits, and define its objects as all that a government could accomplish for the common weal, without departing from the principle just established; while, from this position, we could proceed to derive the still stricter limitation, that any State interference in private affairs, not directly implying violence done to individual rights, should be absolutely condemned.Same sex couples. Immigration to Canada
If it restricts its solicitude to the second of these objects, it aims merely at security; and I would here oppose this term security to every other possible end of State agency, and comprise these last under the general head of Positive Welfare.
Further, the various means adopted by a State, as subservient to its purposes, affect in very different measure the extension of its activity. It may endeavour, for instance, to secure the accomplishment of these immediately, either with the aid of coercion or by the inducements Edition: It will be evident, that it is single actions only that come under political supervision in the first of these cases; that this is extended in the second to the general conduct of life; and that, in the last instance we have supposed, it is the very character of the citizen, his views, and modes of thought, which are brought under the influence of State control.
The actual working of this restrictive agency, moreover, is clearly least considerable in the first of these cases, more so in the second, and is most effective and apparent in the last; either because, in this, it reaches the most copious sources of action, or that the very possibility of such an influence presupposes a greater multiplicity of institutions.
But however seemingly different the departments of political action to which they respectively belong, we shall scarcely find any one institution which is not more or less intimately interwoven, in its objects or its consequences, with several of these.
We have but to notice, by way of illustration, the close interdependence that exists between the promotion of welfare and the maintenance of security; and further, to remember that when any influence affecting single actions only, engenders a habit through the force of repetition, it comes ultimately to modify the character itself.
Hence, in view of this interdependence of political institutions, it becomes very difficult to discover a systematic division of the whole subject before us, sufficiently correspondent to the course of our present inquiry. But, in any case, it will be most immediately conducive to our design, to examine in the outset whether the State Edition: I am speaking here, then, of the entire efforts of the State to elevate the positive welfare of the nation; of its solicitude for the population of the country, and the subsistence of its inhabitants, whether manifested directly in such institutions as poor-laws, or indirectly, in the encouragement of agriculture, industry, and commerce; of all regulations relative to finance and currency, imports and exports, etc.
For the moral welfare is not in general regarded so much for its own sake, as with reference to its bearing on security, and will therefore be more appropriately introduced in the subsequent course of the inquiry.
Now all such institutions, I maintain, are positively hurtful in their consequences, and wholly irreconcilable with a true system of polity; a system which, although conceivable only from the loftiest points of view, is yet in no way inconsistent with the limits and capacities of human nature. A spirit of governing predominates in every institution of this kind; and however wise and salutary such a spirit may be, it invariably superinduces national uniformity, and a constrained and unnatural manner of action.
Instead of men grouping themselves into communities in order to discipline and develope their powers, even though, Edition: The very variety arising from the union of numbers of individuals is the highest good which social life can confer, and this variety is undoubtedly merged into uniformity in proportion to the measure of State interference.
Under such a system, it is not so much the individual members of a nation living united in the bonds of a civil compact; but isolated subjects living in a relation to the State, or rather to the spirit which prevails in its government,—a relation in which the undue preponderance of the State element tends already to fetter the free play of individual energies. Like causes produce like effects; and hence, in proportion as State co-operation increases in extent and efficiency, a common resemblance diffuses itself, not only through all the agents to which it is applied, but through all the results of their activity.
And this is the very design which States have in view. They desire nothing so much as comfort, ease, tranquillity; and these are most readily secured when there is little or no discordancy among that which is individual. It is to these alone we are to look for the free development of character in all its vigorous and multiform diversity of phase and manifestation; and, to appeal to the inner motive of the individual man, there can be no one, surely, so far sunk and degraded, as to prefer, for himself personally, comfort and enjoyment to greatness; and he who draws conclusions for such a preference in the case of others, may justly be suspected of misconceiving the essential nobleness of human nature, and of Edition: Further, a second hurtful consequence ascribable to such a policy is, that these positive institutions tend to weaken the power and resources of the nation.
For as the substance is annihilated by the form which is externally imposed upon it, so does it gain greater richness and beauty from that which is internally superinduced by its own spontaneous action; and in the case under consideration it is the form which annihilates the substance,—that which is of itself non-existent suppressing and destroying that which really is existent.
The grand characteristic of human nature is organization. Whatever is to ripen in its soil and expand into a fair maturity, must first have existed therein as the little germ. Every manifestation of power presupposes the existence of enthusiasm; and but few things sufficiently cherish enthusiasm as to represent its object as a present or future possession.
A prime example of this comes from the famous case of Stilk v Myrick . Here, a master of a ship promised his crew that, following the desertion of two seamen, he would divide up the wages of the deserters equally between them if they worked the ship back to London. They obliged, but the master did not pay up so a member of the crew sued for the promised extra wages.
But their claim failed: However, as a result the pendulum has swung too far the other way; from favouring the creditor to favouring the debtor: This article examines this judgment in detail, after having scrutinised in depth how the law in this area ended up in such a tangled mess. Williams Wthe claimant, was hired to perform carpentry work on flats for Roffey Rthe defendant sub-contractor.
However, W ran into financial trouble and asked for an additional payment in return for completion of the contracted work, which R initially agreed to pay. However, when R subsequently reneged upon this agreement, W sued for the sum arguing that it was owed under a valid contract. R challenged this on the grounds that no consideration had been provided by W. In his view, the completion of the flats constituted a practical benefit to R, helping R to avoid any contractual liability to the main contractor for which it worked.
The notion of practical benefit was criticised as incoherent in Adam Opel v Mitras Automotive  and rejected in WRN Ltd v Ayris  in favour of the traditional approach in Stilk v Myrick . Peter Gibson LJ judgment in this case was a tilt of the hat to the classic authority of Foakes v Beer . There, the House of Lords had held that the part-payment of a debt is not good consideration for the full balance owned. With this in mind, Peter Gibson LJ reasoned that if he were to extend Williams v Roffeya creditor would always see a practical benefit in accommodating a debtor due to fear of not getting any money back.
This would render Foakes obsolete, which was a step he could not take. However, while he may have succeeded in disposing of the case before him, he left open discussion of the merits of Foakes.
Why decline to recognise the practical benefit to a creditor of a bird in the hand as opposed to two in the bush? After all, Lord Blackburn had even opined in Foakes that the decision seemed at odds with commercial pragmatism: Nevertheless, it is important not to exaggerate the effect of Foakes.
But, this solution is unsatisfactory.
The Intervention of Equity Therefore, where possible, courts have turned to the equitable doctrine of promissory estoppel as an alternative to the common law. It simply stated that if a promisor makes an unequivocal and clear statement to another with whom there is a subsisting legal relationship, and that statement is intended to affect their legal relations, then the promisor is prevented from resiling from his promise should to do so be inequitable.
Denning J was swift to recognise promissory estoppel was likely to clash with Foakes v Beer . Indeed, Central London Property Trust involved an agreement of a landlord to accept a reduced rent from the defendant compared to that which it was entitled under their agreement for the duration of the Second World War.
Denning J avoided such clash by making clear the effect of the doctrine was suspensory. The landlord had foregone his rights to arrears amounting to the normal rent due as the war continued, but he had not foregone his right to the full amount once it ended. However, the role of ensuring there is such an accord is now largely the remit of economic duress.
The Death of Foakes? The case highlighted the potential for a crossover between the two approaches in equity and at common law.
She held that whenever a creditor made an unequivocal and clear promise to remit a debt, then the creditor would be prevented from resiling from their promise if the effect of resiling was sufficiently inequitable. Moreover, if a creditor unequivocally promised to accept less in full satisfaction, they would extinguish their right to recover the total amount. In a stroke, Arden LJ undermined the suspensory nature of the doctrine.
Where promissory estoppel is raised as a defence or counter-claim against a creditor seeking full payment after a purported agreement to remit the balance of a debt in exchange for part-payment.