622 PRIVATE LAW 



just as in the middle period of the Roman law they are associated 

 with the office of the pretor. 



Admirers of the unwritten law point to its power to adapt 

 itself to change of circumstances in time and place. It is quite 

 true that both the Roman and the English law have shown themselves 

 capable, on the whole, of keeping pace with the advance of civiliza- 

 tion for centuries with remarkably slight aid from legislation. The 

 study of these two systems reveals, howaver, also the shortcomings 

 of this form of law and legal development. 



In the first place, flexibility seems to decline with the advance of 

 jurisprudence. Where the evidences of law are carefully collected, 

 and decisions closely watched and scrutinized, the settled law is 

 not easily unsettled; constant analysis is not congenial to the subtle 

 processes of change to which reference has been made. So the Ro- 

 man law, after having stripped the father of most of his substantial 

 control over the son, was unable to shake off its theory of the paternal 

 power; it retained the distinction between quiritarian and bonitarian 

 ownership, between Roman and provincial soil, between civil and 

 pretorian inheritance, between legacies and trusts, between wills and 

 codicils, long after they had ceased to serve any practical use. The 

 English law grew increasingly rigorous after the restoration of 

 the monarchy. The protection of authors' and inventors' rights, the 

 most important extension of the idea of property in modern times, 

 had to come first from the sovereign prerogative, and then from the 

 legislature; the common law courts were unable to extend the general 

 principles of the law of torts into a right of action for death caused 

 by a wrongful act, although the same difficulty was not felt on the 

 continent of Europe; the right of privacy is still looking for general 

 recognition; and the unqualified application of the English law of 

 water-rights in many American jurisdictions did not evince great 

 power of adaptation to changed circumstances. 1 



In the second place, a process of transformation which leaves the 

 previously established law formally intact must result in complex 

 and technical legal arrangements. This was very obvious in the 

 Roman law, and is equally so at present in our own. The distinction 

 between the civil and the pretorian law, as that between law and 

 equity, bears witness to the loss of simplicity by which the substan- 

 tial gain in justice had to be bought. It was one of the great achieve- 



1 Nineteen states apply the common law doctrine of non-tidal waters to non- 

 tidal navigable rivers (Connecticut, Delaware, Georgia, Illinois, Kentucky, Maine, 

 Maryland, Massachusetts, Michigan, Mississippi, New Hampshire, New Jersey, 

 New York, North Carolina, Ohio, Rhode Island, South Carolina, Vermont, 

 Wisconsin). Am. and Eng. Encyclop. of JMW, 1st ed., vol. 16, p. 253. Seven of 

 the arid states of the West (Kansas, Nebraska, South Dakota, North Dakota, 

 Texas, California, Washington) followed the common law of riparian rights 

 instead of adopting the doctrine of prior appropriation. Farnham, Water Rights, 

 sees. 649-651. 



