this
immovable principle. This seems to be, indeed, the doctrine which Hobbes
broached in the last century, and which was then so frequently and so
ably refuted. Cicero exclaims with the utmost indignation and contempt
against such a notion:[22] he considers it not only as unworthy of a
philosopher, but of an illiterate peasant; that of all things this was
the most truly absurd, to fancy that the rule of justice was to be taken
from the constitutions of commonwealths, or that laws derived their
authority from the statutes of the people, the edicts of princes, or
the decrees of judges. If it be admitted that it is not the black-letter
and the king's arms that makes the law, we are to look for it elsewhere.

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 mention