ancient master, if the actual possessor had
acquired them by a fair transaction from the person whom he believed to
be the lawful proprietor. [140] 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. 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, [141] of
servitude, [142] imposed for the benefit of a neighbor 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 subtilty by the same civilians.

[Footnote 137: Institut. l. ii. tit i. ii. Compare the pure and precise
reasoning of Caius and Heineccius (l. ii. tit. i. p. 69-91) with the
loose prolixity of Theophilus, (p. 207--265.) The opinions of Ulpian are
preserved in the Pandects, (l. i. tit. viii. leg. 41, No. 1.)]

[Footnote 138: The heredium of the first Romans is defined by Varro, (de
Re Rustica, l. i. c. ii. p. 141, c. x. p. 160, 161, edit. Gesner,) and
clouded by Pliny's declamation, (Hist. Natur. xviii. 2.) A just and
learned comment is given in the Administration des Terres chez les
Romains, (p. 12--66.) Note: On the duo jugera, compare Niebuhr, vol. i.
p. 337.--M.]

[Footnote 139: The res mancipi is explained from faint and remote lights
by Ulpian (Fragment. tit. xviii. p. 618, 619) and Bynkershoek, (Opp
tom. i. p. 306--315.) The definition is somewhat arbitrary; and as none
except myself have assigned a reason, I am diffident of my own.]

[Footnote 140: From this short prescription, Hume (Essays, vol. i. p.
423) infers that there could not then be more order and settlement in
Italy than now amongst the Tartars. By the civilian of his adversary
Wallace, he is reproached, and not without reason, for overlooking the
conditions, (Institut. l. ii. tit. vi.) * Note: Gibbon acknowledges,
in the former note, the obscurity of his views with regard to the res
mancipi. The interpreters, who preceded him, are not agreed on
this point, one of the most difficult in the ancient Ro