Legal and Political Development 

 the streams and carried in flumes, often a consider- 

 able distance, to enable him to work his placer 

 claim. The rule of the older States and of England, 

 whereby the use of running water was limited to 

 him whose land was bounded by the stream, was 

 unsuitable to economic needs and yielded to the 

 greater force. The evolution of vague and in- 

 definite custom into positive law finds no better 

 illustration in modern times than in the process 

 by which the unwritten usages of California gold 

 miners became a most important part of the law 

 of mines and waters. 



In many other branches we may trace the direct 

 influence of the frontier civilization which resulted 

 from the sudden settlement of the State by ad- 

 venturous gold-seekers. The criminal law, as laid 

 down in later statutes and judicial decisions, aff'ords 

 illustrations of miners' conceptions of justice. For 

 many years, the theft of any horse, regardless of 

 its value, was grand larceny, though, generally, 

 to constitute this crime the property stolen must 

 have been worth at least fifty dollars. Even to 

 the present day, the law of California sustains the 

 right of self-defense to an extent not countenanced 

 in most of the older communities — the right of one 

 feloniously attacked to maintain his ground, even 

 if he has to take his assailant's life to do so, rather 

 than to flee, if possible. 



These illustrations from the field of criminal 

 law may be supplemented bv others from the law 

 which deals with the rights of the citizen. People, 

 including lawyers and judges, are often heard to 

 speak of the right of property as if it were an 

 absolute right, the same in all times and places. 

 A little study of legal history would convince them 

 that property does not mean the same thing in all 

 places and at all times, and its concept is based on 

 social forces. For example, any elementary treatise 

 on general law will point out that under the com- 

 mon law of England and of the States of the Ameri- 

 can Union any unauthorized entry upon one's land 

 by another, or by another's cattle, gives the right 

 to an action at law in favor of the land owner. 

 But the land owner's property right was never so 

 extensive as this in California. It never was the 

 common law of that State that a man was liable 

 for his cattle's trespasses. The pastoral conditions 

 which preceded the stage of the gold miners, and 

 which continued to exist side by side with the 

 miners' social system, would have made the appli- 

 cation of the common law to the situation in Cali- 

 fornia intolerable, and the courts early recognized 



268 



