Legal and Political Development 

 the constitution and frame of government and 

 fundamental rights of the citizen, the older system 

 has contributed nothing to legal history. The po- 

 litical institutions are, it is believed, as if Spain 

 and Mexico had never been. Some elements, how- 

 ever, of the older system in the field of private 

 rights survived the shock of the American invasion, 

 the most important of which are in the field of 

 family law. Considering the disparity between the 

 male and female population in 1850, it was natural 

 that a system of marital rights, fairer in its treat- 

 ment of woman than the English common law, 

 should have been left undisturbed by the pioneers. 

 Had the settlers come with their wives and families, 

 they would probably have brought with them the 

 common law, as well as the social conditions of 

 the older States, based upon the English law. But 

 the remoteness of the new Eldorado was such that 

 those who came were either young, single men, or 

 they left their families at home — transient gold- 

 seekers. They found already existing a tolerably 

 well established system of marital rights. Neither 

 selfish instincts nor a desire to improve conditions 

 prompted them to change the property rights of 

 the few women in the State. Consequently the 

 Spanish law of the community of goods remained 

 a permanent part of the legal system of California. 

 The wife became to a certain extent a partner 

 with her husband in the gains made during the 

 marriage — an idea far removed from the concep- 

 tion then at the basis of the American law generally, 

 that the husband was the sole owner of such prop- 

 erty. To attribute, however, the permanent adop- 

 tion of the community system in California ex- 

 clusively to social conditions, based upon the dis- 

 covery of free gold and the geographical isolation 

 of the territory by ocean, mountains and deserts 

 from the center of population, would, perhaps, be 

 unwarranted. The vitality and force of the system, 

 inherent in the fact that it is based upon more 

 humane conceptions, has enabled it to conquer the 

 common law under conditions not so favorable for 

 its triumph as those that existed in pioneer Califor- 

 nia. In Washington, for instance, though French 

 and Spanish institutions had but little opportunity 

 of striking root, the State adopted this system of 

 property between the spouses. 



The same causes that contributed to perpetuate 

 the community were operative with respect to the 

 subject of marriage in general. Each of the con- 

 stitutions of California, that of 1849 and that of 

 1879, has a provision that marriage is a civil con- 



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