518 THE DECLINE AND FALL [Chap, xliv years, determined by Justinian, are more suitable to the latitude of a great empire. 145 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,™ of servitudes, m 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 meta- physical subtlety by the same civilians, of inherit- The personal title of the first proprietor must be determined succession by his death ; but the possession, without any appearance of 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 im- provements, 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 Eomans appears to have deviated from the equality of nature much less than the Jewish, 148 the Athenian, 149 or the English institutions. 150 On the death 145 [This transformed usucapio, or prescription, of Justinian was really a com- bination of the usucapio of the Civil Law, which only applied to Italian soil, and the longi temporis pr&scriptio, the analogous institution of prastorian 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.] 146 See the Institutes (1. i. [leg. ii.] tit. iv. v.), and the Pandects (1. vii.). Noodt has composed a learned and distinct treatise de Ustifructu (Opp. torn. i. p. 387-478). 147 The questions de Servitutibus are discussed in the Institutes (1. ii. tit. iii.), and Pandects (1. viii.). Cicero (pro Murena, c. 9) and Lactantius (Institut. Divin. 1. i. o. i. ) affect to laugh at the insignificant doctrine, de aqua pluvia arcenda, &c. Yet it might be of frequent use among litigious neighbours, both in town and country. 148 Among the patriarchs, the first-born enjoyed a mystic and spiritual primo- geniture (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 Commen- tary). 149 At Athens the sons were equal, but the poor daughters were endowed at the discretion of their brothers. See the KXvpucoi pleadings of Isaeus (in the viith volume of the Greek Orators), illustrated by the version and comment of Sir William Jones, a Bcholar, a lawyer, and a man of genius. 150 In England, the eldest son alone inherits all the land : a law, says the ortho- dox judge Blackstone (Commentaries on the laws of England, vol. ii. p. 215), unjust
