Such conscientious injustice, without any mixture of fraud or force, could seldom injure the members of a small republic; but the various periods of three, of ten, or of twenty years, determined by Justinian, are more suitable to the latitude of a great empire.[1] It is only in the term of prescription that the distinction of real and personal fortune has been remarked by the civilians, and their general idea of property is that of simple, uniform, and absolute dominion. The subordinate exceptions of use, of usufruct,[2] of servitudes,[3] imposed for the benefit of a neighbour on lands and houses, are abundantly explained by the professors of jurisprudence. The claims of property, as far as they are altered by the mixture, the division, or the transformation of substances, are investigated with metaphysical subtlety by the same civilians.
Of inheritance and succession The personal title of the first proprietor must be determined by his death; but the possession, without any appearance oi succession change, is peaceably continued in his children, the associates of his toil and the partners of his wealth. This natural inheritance has been protected by the legislators of every climate and age, and the father is encouraged to persevere in slow and distant improvements, by the tender hope that a long posterity will enjoy the fruits of his labour. The principle of hereditary succession is universal, but the order has been variously established by convenience or caprice, by the spirit of national institutions, or by some partial example, which was originally decided by fraud or violence. The jurisprudence of the Romans appears to have deviated from the equality of nature much less than the Jewish,[4] the Athenian,[5] or the English- ↑ [This transformed usucapio, or prescription, of Justinian was really a combination of the usucapio of the Civil Law, which only applied to Italian soil, and the longi iemporis pæescriptio, the analogous institution of prætorian law, which applied to provincial soil. The innovation of Justinian was the logical result of the obliteration of the distinction between Italian and provincial soil.]
- ↑ See the Institutes (l. i. [leg. ii.] tit. iv. v.), and the Pandects (l. vii.). Noodt has composed a learned and distinct treatise de Usufructu (Opp. tom. i. p. 387-478).
- ↑ The questions de Servitutibus are discussed in the Institutes (l. ii. tit. iii.), and Pandects (l. viii.). Cicero (pro Murenâ, c. 9) and Lactantius (Institut. Divin. l. i. c. i.) affect to laugh at the insignificant doctrine, de aquâ pluvia arcendâ, &c. Yet it might be of frequent use among litigious neighbours, both in town and country.
- ↑ Among the patriarchs, the first-born enjoyed a mystic and spiritual primogeniture (Genesis, xxv. 31). In the land of Canaan he was entitled to a double portion of inheritance (Deuteronomy, xxi. 17, with Le Clerc's judicious Commentary).
- ↑ At Athens the sons were equal, but the poor daughters were endowed at the discretion of their brothers. See the κληρικοί pleadings of Isæus (in the viith volume of the Greek Orators), illustrated by the version and comment of Sir William Jones, a scholar, a lawyer, and a man of genius.
