In reality there are two, and only two, foundations of law; and they are both of them conditions without which nothing can give it any force:  I mean equity and utility.  With respect to the former, it grows out of the great rule of equality, which is grounded upon our common nature, and which Philo, with propriety and beauty, calls the mother of justice.  All human laws are, properly speaking, only declaratory; they may alter the mode and application, but have no power over the substance of original justice.  The other foundation of law, which is utility, must be understood, not of partial or limited, but of general and public utility, connected in the same manner with, and derived directly from, our rational nature:  for any other utility may be the utility of a robber, but cannot be that of a citizen,—­the interest of the domestic enemy, and not that of a member of the commonwealth.  This present equality can never be the foundation of statutes which create an artificial difference between men, as the laws before us do, in order to induce a consequential inequality in the distribution of justice.  Law is a mode of human action respecting society, and must be governed by the same rules of equity which govern every private action; and so Tully considers it in his Offices as the only utility agreeable to that nature:  “Unum debet esse omnibus propositum, ut eadem sit utilitas uniuscujusque et universorum; quam si ad se quisque rapiat, dissolvetur omnis humana consortio.”

If any proposition can be clear in itself, it is this:  that a law which shuts out from all secure and valuable property the bulk of the people cannot be made for the utility of the party so excluded.  This, therefore, is not the utility which Tully mentions.  But if it were true (as it is not) that the real interest of any part of the community could be separated from the happiness of the rest, still it would afford no just foundation for a statute providing exclusively for that interest at the expense of the other; because it would be repugnant to the essence of law, which requires that it be made as much as possible for the benefit of the whole.  If this principle be denied or evaded, what ground have we left to reason on?  We must at once make a total change in all our ideas, and look for a new definition of law.  Where to find it I confess myself at a loss.  If we resort to the fountains of jurisprudence, they will not supply us with any that is for our purpose. “Jus” (says Paulus) “pluribus modis dicitur:  uno modo, cum id, quod semper aequum et bonum est, jus dicitur, ut est jus naturale";—­this sense of the word will not be thought, I imagine, very applicable to our penal laws;—­“altero modo, quod omnibus aut pluribus in unaquaque civitate utile est, ut est jus civile.”  Perhaps this latter will be as insufficient, and would rather seem a censure and condemnation of the Popery Acts than a definition that includes them; and there is no other to be found in the whole Digest; neither are there any modern writers whose ideas of law are at all narrower.