These things being premised, Mr B. proceeds to answer my arguments, which were produced to prove that upon the death of Christ there was a right obtained for the elect to all the benefits of his death, this right residing in the justice of God, or in the equalling of these things by divine constitution (as I fully declaimed in the place by Mr B. opposed). Upon the interposing of some expressions, in the
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process of my discourse, of the grant being made to the elect, and mentioning of their right (which in what sense they were to be taken I expressly declared), Mr B. takes advantage to answer them all with this intendment put upon them, that they aimed to prove a subjective personal right, which at any time they may plead, when the utmost that my words can be extended unto is, that they have it ex foedere, not realiter, for the subject of it I place elsewhere. Now, if Mr B. will send me word that he supposes he hath answered my arguments as they were proposed to my own purpose, I will promise, if I live, to return him an answer. In the meantime, I shall have no itch to be scribbling to no purpose. " Ego me, tua causa, ne erres, non rupturus sum." Yet of the whole he may for the present be pleased to receive the ensuing account, both as to the nature of a, jus and its application.
For the description of jus, Mr B. relies on Grotius; and something also he mentions out of Sayrus. Grotius, in the first chapter of his book " De Jure Belli et Pacis," in the sections transcribed (in part) by Mr B. and some others, expresses, in his way, the distinction given at the beginning both of the Institu- tions and Digests about j(us, and those also which they handle under the head " de statu." So do all men commonly that write of that subject. How exactly this is done by Grotius, those who are learned in the law will judge. For my part, I am so far at liberty as not to be concluded by his bare affirmation either as to law or gospel. Yet neither doth he exclude the right by me intended. He tells us, indeed, that facultas, which the lawyers call sui, is that which properly and strictly he intends to call jus. But the other member of the distinction he terms aptitudo ; which though in a natural sense it respects the subject immediately, yet he tells you that in the sense of Michael Ephesius, which he contradicts not, it is but ro ^pi-rov, '* id quod convenit," which respects only the order of things among themselves. And though out of Aristotle he calls it also d^id, yet that word (as he also after- ward expounds it out of Cicero) is of much a lower signification than many ima- gine. This TO ■^pi'pro* is that which I assert ; and Sayrus' definition of jus ad rem may also be allowed.
But for others, jus artificially is ars boni et cequi, Ponz. de Lamiis, num. 14, torn, xi. Jus Gregor. p. 2, and D. D., cap. i. Celsus; though some dispute against this definition, as Conanus, Comment. Jur, Civil, lib. i. cap. i. That which is cequum is the sul ject of it. So the comedian, " Quid cum illis agas, qui neque jus, neque bonum, neque ajquum sciunt," Terent. Heauton. iv. 1. 29; — all terms equipollent. And in this sense, one that is not born may have a jus, if it be in a thing that is profitable to him : '• Quod dicimus eum qui nasci speratur pro superstite esse, tunc verum est, cum deipsius jure qua^ritur, alias nonprodest, nisi natus sit," Paulus de Verbor. Significat.; which one interpretation will overbear, with me, a hundred mo- dern exceptioners, if they should deny that a man may be said to have a right unless he himself be the immediate subject of the right, as if it wei'e a natural accident inherent to him. So is it in the case proposed by Cicero in secundo [libro] de In- ventione, 42 : " Pater-fomilias cum liberorum nihil haberet, uxorem autem haberet, in testamento ita scripsit, ' Si mihi filius genitus fuerit unus, pluresve, is mihi ha;res esto.' " The father dies before the son is born ; a right accrues to him that is not born. Such a right, I say, there is, although this right is not immediately actionable. Gains tells us that " actio est prosecutio juris sui." This jus suum is that which Grotius calls facidtas, and is jus proprie et stride dictum. And this jus suum I did not intend in that I said it was not actionable : and there- fore, whereas Conanus says that " nullum est jus, cui non sit aut a natura, aut a lege data quondam obligatio, tanquam comes et adjutrix," Comment. Jur. Civil, lib. ii. cap. i., which obligation is the foundation of action, it is evident that he 'mtends jus proprneet stride dictum; for Gains distinguisheth between jus utendi, fruendi, and j(«s obligationis, D. lib. i. 1, 8, which he could not do if all and every VOL. XII. ^9
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right had an obligation attending it. And such is that right whereof we speak. If any one thinks to plead it, he will be like him whom the lawyers call " agentem sine actione," of whom they dispute " an liceat ei experiri," and whether his plea be to be admitted ; concerning which the variety of cases and opinions are repeated by Menochius de Arbit. Judic. lib. i. qu. 16, 2.