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chapter 2: Law Among Primordial Men - John Maxcy Zane, The Story of the Law 
The Story of Law, 2nd ed., Introduction by James M. Beck. New Foreword, Annotations, and Bibliographies by Charles J. Reid, Jr. (Indianapolis: Liberty Fund 1998).
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Law Among Primordial Men
After the earth passed from the Tertiary Age into what has been called by some the Quaternary Age and by others the Pleistocene, there came upon the earth this new type of animal, homo primigenius, which was to have such a marvelous career. There were certain things about these new animals that gave promise. Their ancestors had passed their lives in the trees, a habitat retained by certain men in New Guinea to-day who are enough advanced to use the bow and arrow, but such life for men of the present is a reversion. The first human beings had definitely abandoned the trees and had come down to the earth. The hands of their hind members had been converted into feet, and this firm footing with the sigmoid flexure of the backbone enabled them to stand upright. It took, of course, ages to develop these physical changes, but at last there was a creature that (a happy omen) stood upright and could not only look the world in the face, but could turn his eyes upward to the stars.
In the gradual change into men, the possession of hands and a life in the trees had given to those prior creatures and to their descendants an unexampled development of brain resulting from the rapid correlation of eye and hand and intense muscular activity. Many eloquent pages have been written upon what the human hand has done for man and of its marvelous creations, but it is enough here to note this effect upon the brain. In tracing the legal story of these primeval men it is necessary to keep clearly in mind the general facts and not to become involved in a mass of irrelevant details.
A certain mentality, sufficient knowledge to obtain food, sufficient social instinct to keep them together in the group, sufficient animal cunning to avoid dangerous beasts, these primeval men, of course, possessed; but higher attributes they had none. Naked, without fire or shelter, without defensive weapons, condemned to live through long ages before they could acquire even the simplest artificial aids to life, these poor, naked, helpless wretches, amidst the laughter of the gods, as the ancients said, entered upon their career of the conquest of the world. All they had were their simple inherited animal instincts and their large brain structure. To speak of laws in connection with such beings is startling, but they had them—fixed, ineradicable customs that were written on their minds and which through our subconscious mentality often rule us to-day. But first it is necessary to get rid of an idea that has been of as much trouble to a true science of psychology as it has been to a true science of jurisprudence.
The poet Tennyson, thinking that he was stating the evolutionary conception of man’s development, has the line: “The Lord let the house of a brute to the soul of a man.” Nothing could be more characteristic of the old type of thought. Man, they say, was created with a soul, by which is meant the mentality that men have to-day. It may seem folly in this connection to quote Genesis, but if man as created in Adam “knew not good and evil,” he was a complete brute. No one is prepared to admit that brutes have what these people call souls, and if the human frame once housed a brute, that brute could not have had the soul of a man. There has been no change in the housing, but the mentality that animated it is a mentality that has changed from that of a brute to the reasoning mind of a man. Since the human mind is a unity and since that mind was once the mind of a brute, and is to-day burdened with many brute inheritances, there must have been, on this theory, a time when the original brute’s mind changed into a reasoning soul. So far as man’s evolution is important in law, the mental development of the original brute is all that is of importance. The history of law can deal only with facts, mental or physical, and is not troubled by any inquiry as to exactly when the brute’s mentality became what the poet calls a soul, for “soul” is a word of generalized indefiniteness.
But the science of law is concerned, as the sequel will show, with the time when the brute’s wholly subconscious kind of mentality passed into a conscious mind. The change from primeval man to homo sapiens was a mental change. From that standpoint it is emphatically true that in the case of primordial men, “the house of a brute was let to the mind of a brute.” This creature on coming into the world was so far from “trailing clouds of glory,” as Wordsworth says, that he trailed with him brute instincts so imbedded in his mental nature that not yet and probably not for many ages will his descendant rid himself of that brutish mental inheritance that still debases and binds him down. All the so-called philosophies of law and practically all the theories of the development of the law of human personality and of property are befogged by this absurd assumption that men’s laws have always been directed by men capable of reasoning. These people are always reasoning backward in a fuliginous misconception. Hence comes the futility of the so-called schools of legal philosophy. On the contrary, the laws as to personality and property had their beginnings among men who were ruled by instincts and even to-day man’s instinctive subconscious mind brings to naught the hoped-for results of flawless and elaborated reasonings upon the law.
Considering this primeval man as he was, we must picture him as looking out upon a world of physical surroundings much what they are to-day. Earth, air and sky, sunshine and rain, hill and valley, all the works of Nature he saw. But to this brute, naked, without any storing of a food supply and without a fire, existence in any climate but a tropical one was impossible. One winter would have destroyed the race. The mere fact of the condition of the newborn child makes it plain that man originated and lived for uncounted ages in a tropical clime. It is also a necessary inference that these men were dark in color. It happened that in that Pleistocene time a tropical climate existed over Europe, Asia, and Africa almost to the North Pole. Such is the settled geological and zoölogical fact. Snow and ice were unknown to primordial man. This original seat of man may have been in Africa, Asia, or Europe. Europe was joined to Africa by a land barrier through Sicily. The British Isles joined the mainland of Europe and there is no impossibility in either place of origin. Not only were these men black in color and hairy beasts, but they had the faces of the anthropoids. They had sufficient knowledge to keep themselves alive, and hence they have survived. They lived a community life, that is to say, they lived the life of the herd, a condition inherited from some former existence; they had reached the human stage with the ingrained instincts of social animals.
The two basic instincts of course they had, first the instinct of all animals to propagate by the union of male and female, and the instinct to preserve the young. They had the instinct of all social animals to preserve the social organization, and this was an added tendency to preserving the young and protecting the females. Expressed in a more general way, it is true that all social animals have the instinct of common action for the common good of the particular aggregation of which they are a part. Practically we may say that all the laws or rules of acting that existed among them were ways of acting as mere animals to propagate their kind, to cling together as a community, and to preserve the young. Ages ago the Roman jurist Ulpian laid it down that the basis of natural law for human beings was the union of the male and female, the procreation of children, and the protection and bringing up of the children. The acquisitive instinct in these men was wanting, since they had no need for storing food. Being the creatures of instinct, they all acted alike, and, having no self-consciousness, knew not why they acted alike. The modes of conduct had all the inevitability of the customs of the ants, and like the ants they had no need for a guide or overseer or ruler. Kings, chiefs, headmen were unthinkable.
Like all other animals, they had not the slightest idea of how the offspring of the females were generated. Hence it is easy to see that there was no family organization, no distinctly marked off family group. Nor is it likely that there was any possession by males of particular females, nor was there any such idea as that of fatherhood. Promiscuity was necessarily the rule. When the evidence is examined carefully it points to promiscuity, but a promiscuity of the animal, which pairs for the breeding season, not the promiscuity of the prostitute. The fact must be kept in mind that the offspring required nurture for some years until they became viable and the mother for years must know and nurture her own offspring. The herd knew by instinct, just as musk-oxen know, that the mothers with their children must be protected, otherwise the herd would not survive. They knew that on the children depended the future of the herd. Hence, by the working of natural laws, it is plain that the child for its early years at least would know its mother but it would have not the slightest conception of a father. The mother would know and nurture her child, and the social law was that the males protected the females and the young.
Language, except a few rude sounds, aided by signs or motions, was unknown among them, for the simple reason that language for its development requires a relatively higher type of intelligence. Language required not only memory but reasoning upon the products of memory. It was certain that when language should be developed there would be a word for a mother long before there was one for a father. In fact some savages, which to-day remain sunk in primeval brutishness, have words for mother and for child but have never had any word for father. The conception even yet does not exist among such degraded savages. We are at present in this story where all men were equally degraded.
Law as we have it has a division that may not be entirely logical but it is exceedingly convenient. It is the division into public law, which governs the relation of the individual to the social group, and private law, which governs the relations of individuals to other individuals in the group. Among these first men, the region of private law had no material upon which to exist. There was no property belonging to individuals or families, nor was there any opportunity for property, hence there was no stealing, no personal property law, no real property, no contract nor tort involving an injury to property, or a violation of a property right; there was no family law of domestic relations of husband and wife, parent and child, for the loose relations of men and women left no field for such law. There was no law either as to personality, since there was no such idea as personality.
But they had the social instinct and it dictated that every member of the community must not be guilty of conduct such that, in the inherited experience evidenced by customs of the members of the community, it would endanger the social existence. The certain result of this instinct would be that they would all act alike. One who did not act like his fellows must inevitably be forced out of the community. This, to a creature trained to live only as a social being, would be unendurable. If driven out of the community, where could he go? Even the drone ants, although they have wings to escape the wingless workers, who execute them, submit to certain death without hesitation and do this with entire willingness. Hence, from the social instinct, would come that deeply rooted tendency, which has never left man, to suit his conduct to that of his fellows, the desire to please and be pleasing to those with whom he lives in daily contact. This is a simple matter but it is necessarily the governing rule among all social animals. It lies at the basis of all law.
Translated into terms of law, this governing rule means that the conduct of each individual in general toward his fellow men must be in accordance with the general conduct and customary ways of the average man. Stated in another way, this means that every man should act so that his rule of action would be the general rule. We have seen that this rule applies to the social ants. The philosopher Kant thought that he had discovered the basis of all law in the proposition that one should so act that his rule of action could become a general law. This is precisely what primeval men were doing. This is precisely what all social animals have as a rule of conduct. Kant’s discovery was the discovery that men have lived in a social condition. This standard of the conduct of the average man has in many respects never been improved upon.
When a judge to-day lays down the law to a jury by saying that if the defendant was guilty of a want of that care which would have been exercised by a man of ordinary care and prudence under the circumstances, he was guilty of negligence, the judge is charging in the exact terms of the workings of the mind of this ancestral animal. To-day the law is that one who acts to the injury of another contrary to the standard of care and prudence of an ordinary man, is doing something unlawful.
If it be said that this primeval law is wholly in the air because one must use the whole body of law to define an infraction of the law, the answer is plain out of our law to-day. The widest of all present offenses is that of conspiracy, which is defined to be an agreement between two or more to commit an unlawful act or to do a lawful act in an unlawful manner. This unlawful act need not be a criminal act. The whole body of law, civil and criminal, is used to define an infraction of it, for before a man can know that he is agreeing to do an unlawful act, he must know every act that the law declares to be unlawful. The law consoles the defendant by the cheerful words that a man is presumed to know the law, even if lawyers and judges are not so presumed. It is apparent that the principle that all men are presumed to know the law comes from a remote time.
Long ago in the Pleistocene Age, among these naked, helpless brutes, the one law, if expressed, would have covered public and private law, civil and penal law and would have read: Whoever is guilty of any act contrary to the customary ways of acting of the men of the community is guilty of an unlawful act and will be punished by banishment. This is more definite than our law of conspiracy. The poor civilized man can commit the offense of conspiracy by doing with others acts which would be perfectly lawful, if he did them by himself. The primitive man, however, could see in his daily life how others acted, and he had an instinct to act in the same way. But there was no enforcer of this rule of law except the opinion of the whole community. Those ancient forms of punishment, such as killing an offender by a shower of stones, point unmistakably to an enforcement of law by a mob embodying public opinion. Lynch law is merely a reversion to the ways of primeval men. It is more than a mere coincidence, as will later appear, that the general instinctive ways of acting that were produced by the rule of adaptation to surroundings remain still the basis of law. The words of the poet upon the law are strictly true:
The Behaviorist psychologists have noticed the primitive desires of social men and have tried to define them, but among them they have missed this rule of social conformity so important to a development of law and have not followed it out to where it produces law. Its fundamental effect was to produce in men what we now call shame, the sense or, if it be a better term, the reaction of shame. Shame arises purely from this commendation or disapproval of other beings. Long before he was capable of self-consciously knowing what he felt, the human being had this primitive feeling of shame, of being shamed in the presence of his fellows. Any deviation from the customary ways of his fellows would produce in him the sense of being below the standard of conduct, of having done something that those around him disapproved.
Whether we look at this feeling of shame from the subjective standpoint of the one who has the feeling of being shamed and humiliated, or from the objective standpoint of the rest of the community who look on the individual as being guilty of an act that ought to cause him to be ashamed, the result is the same. Each one of the community was driven to conform to customary ways of acting. This fundamental instinct is still as intense in us as in the original man. It is for law the most important instinct of the animal man, for upon it and not upon force or authority, has depended the growth and development of law. But it fixes, once for all, the important fact that law cannot be changed any faster than the mass of the community changes in opinion or belief. The most absolute despot that has ever lived, the force of legislation or the irrefutable arguments for change, cannot impose upon men a change in law until the mass of the community is ready to accept or has already accepted the change.
Since we are telling the story of law and adverting to general history only so far as necessary, we need say no more than that this primeval man from some tropical center, by the slow process of ages, became scattered over at least much of the then tropical parts of Africa, of Asia, and of Europe. We need not enter into the fierce battles of the anthropologists and ethnologists as to where this center was, nor as to what the original race or races were. It is certain that in the first half of the Pleistocene Age, at the very least two hundred and fifty thousand years ago, the human race became disseminated over various parts of Europe, Africa, and Asia. For probably more than one hundred and fifty thousand years primitive men in their tropical surroundings seem to have made little, if any progress; nor is it likely that they would have made much progress had not Nature forced a change.
To speak metaphorically, we may say that Nature, having seen the utter indolence of this latest animal, under the most favorable surroundings, where he was freed from all the necessities of laboring to preserve his life, began to despair of men as she had already despaired of the other tailless anthropoids, and decided that some change in surroundings was necessary to stir the indolent creature into effort toward self-improvement. At least, natural causes brought on what is called the Ice Age. Geologists tell us that at prior periods of geological history, ages of ice were prevalent. Various causes have been assigned for such a great climatic change, but with those causes we are not concerned. The fact is that the great field of ice began to form far in the north of Europe, not to speak of any other place, and in the ranges like the Alps, the Carpathians, the Caucasus.
Slowly, from year to year, from century to century, from age to age, the incredibly thick ice sheet from the north and the glaciers from the mountains, kept moving and pressing farther south and out of the mountains in all directions. At last far toward the south of Europe, an arctic climate prevailed, a short warm summer, and many long months of bitter cold. Take just one illustration: The Rhone glacier which now stops short at the opening to the valley at the Rhone Glacier Hotel, extended down the bottom of the valley, joined the tremendous glacier from Mont Blanc, filled with solid ice all the region of the Lake of Geneva, reached the Jura Mountains with an ice thickness of three thousand feet, topped the Jura range and extended onward until it joined the glaciers beyond Lyons from the mountains of Auvergne. All the tropical flora and fauna necessarily had been destroyed or driven southward with the hippos and the saurians. Probably the great mass of living men all over Europe had passed away. The original hairy, prognathous, anthropoidal brute had been wiped out, even if he had not been exterminated merely by the approach of arctic cold.
To form some conception of what a social community would do in the presence of such a profound calamity, we may take a lesson from the beavers. They, too, had been living in Europe since early in the Tertiary Age. Conditions were so favorable that, at one time in that age, a giant beaver was developed of proportions as large as those of a grizzly bear. In a tropical climate they had no reason to develop their present peculiar genius. But with the advent of the Ice Age they found it necessary to bestir themselves if they intended to live. At least this is what they would have thought had they been capable of reflection. The beavers’ food is the root of a water plant and the bark of certain trees. They live in a gregarious way and dwell in permanent societies. Such a colony has survived, according to actual observation, for two hundred years.
The beaver in this Ice Age developed extraordinary engineering and building skill in order to overcome the wintry climate that threatened his existence. First he must have a home, and a home that was comparatively safe. He, although a rodent, lived much in the water and he had his rodent teeth with which to cut down trees and he had his digging front paws. He took a place in the bank and below the surface of lowest water in the stream and ran a tunnel into the bank, first horizontally and then upward, what miners call a “raise” or “upraise,” and at the top of the “raise” he excavated a large chamber, high enough to remain always above the level of high water in the stream. But at the same time this tunnel must be so placed that the water would not freeze down below the entrance to the tunnel, and thus cut off the beaver from his access to his food supply sunk to the bottom of the stream. In using engineering judgment he never failed in selection. He ran an opening for air from this room to the surface of the ground and covered the hole with sticks plastered together. This was a safe home in winter for most purposes. But later he learned to build an actual hut on top of the ground and plastered it together of sticks and mud. Access to this hut was through the tunnel. This dwelling, however, was not safe from a diving animal like the otter, which is one of the most voracious and predacious creatures known. If an otter entered the tunnel he could at leisure eat up the whole community. The beavers built a second tunnel giving another exit for the chamber, precisely as the miners have a main shaft and then another called the escape shaft.
The beavers must maintain a more or less fixed level of water in the stream. To do this they build a dam, starting it in the center of the stream, with a bunch of logs laid lengthwise in the stream and anchored to the bottom by means of stones and plastered clay. Gradually they build up their dam across the stream, plastered with mud on the upstream side and with a curve upstream. The curve toward the current is an astounding deduction. It gives strength to the dam. In course of time they exhaust the trees immediately adjacent to the stream, which furnish the bark they eat, so in the Ice Age they became hydraulic engineers, running canals back from the pond formed by their dam. These canals were run as truly as if done by a surveyor’s level, so that they always remained full of water. Thus the beavers could tap a fresh supply of bark by felling trees, and the canals furnished their means of transport. They carefully kept the canals free from weeds.
Most ingenious of all their acts is their felling of trees so as to make them fall at the precise place they should fall alongside the stream or canal. They stored their food supply at the bottom of the stream by sticking it into the mud or loading it down with rocks. How many unsuccessful experiments went to the development of these various instinctive habits, no one can say, but thus the beavers prepared themselves to defy the arctic winters. Like the ants, every beaver works like a beaver and their communities have “no guide, overseer or ruler”; and thus they have continued through the ages, although in a warm climate they have abandoned most of the labor imposed on them by a long winter. This instinct to avoid work seems to be ingrained even in the subconscious mind of men.
Man, who had a much better brain than the beaver, was certainly capable of just as much. Perhaps he was not entirely unprepared. The approach of the Ice Age was gradual, lasting over many thousands of years. The first advent of chilly weather must have taught men the necessity of preserving fire. There was no necessity for inventing fire. It was there to use. Certainly they had felt no need of its uses in a tropical climate. Then and there, at the advent of the cold, began man’s worship of fire and the cult of the sacred flame which must never be allowed to expire. True to his nature, man continued to worship the sacred flame, long after he had lost all necessity for maintaining a fire. At this time of the long approach of cold some one of humankind had found that a cutting edge, an actual weapon, could be fashioned by chipping flint. Slowly the flint knife, the flint-headed spear or javelin, and the flint axe came into use. These inventions made invincible weapons; they passed from tribe to tribe until all men were living in what is called the Old Stone Age, consisting of the Eolithic and Paleolithic ages. Still later, when men lived in swamps or beside lakes, came the bone harpoon for spearing fish or other animals. The bow and arrow was an invention of a much later time, for that invention required a complicated sort of ingenuity.
Man had now gained the beginning of his mastery over the wild beast and had begun to alter the course of nature. Just what is the connection between the Ice Age and the development of flint weapons archaeology has not certainly told us, but we know that the two phenomena are parallel. How far men had been carnivorous animals from the beginning we cannot say, but the human dentition, which is a compromise between that of a herbivore and that of a carnivore, had not changed since man’s advent. Nor can we say whether human beings were originally fighting animals; but the proof points to their peaceful character. From the beginning they were both flesh-eating and plant-eating animals. But as soon as they became hunters of the wild beast, they would rapidly develop a fighting propensity. The general effect would be to strengthen the race with a better food supply, to give men courage and skill, and also would enable them to endure a harsher climate by reason of the covering of the body with the skins of their game. The naked brutes had begun to wear some kind of clothing.
Another change was not at first of so much importance, but it was to become so. Men naturally crept under available shelter and became cave dwellers. They were incapable of creating an artificial kind of dwelling. The use of fire enabled them to fight off the cold while sheltered in the cave, but it took men ages to learn the lesson that ants had acquired, of keeping their dwellings clean. The dwelling in caves threw men closer together. There was more communion among them and a common place to resort as a fixed abode. The development of an esthetic instinct will be noticed later. In this hunting stage language was developed, and was steadily improved. The development of spoken speech continued for countless years before a written speech was devised.
The Glacial Age gave mankind a thorough training before it relaxed its stern discipline. The ice sheets of tremendous thickness continued to advance and recede. A tropical climate would return to Europe and then the ice would again advance. Four times at least this change took place. And always came the cold and cruel winters, the failure of the food supply, the coming of famine, the dying women and children. A vivid picture of such a life is drawn in Longfellow’s Hiawatha. Farther and farther to the south the mass of men were driven. During these changes new races appeared. Many causes may have contributed to this result in the long ages. Mixing of tribes or absorption of one tribe in another, cold and want, failure of food, inability to endure the severe climate, must all have been contributing causes. Fierce fighting must have gone on among these various tribes as they were constantly driven upon each other, for the acquisitive instinct, as we shall see, came into play. If the tropical fauna and flora perished in Europe, it is likely that countless human beings perished in the same way. The important thing for history of the law is that the constant struggle for life developed a much higher mentality in man. The improvement in weapons went on until gradually the human race, having passed into the nomad and then into the agricultural stage, was, long after the Ice Age ceased, in the New Stone Age with finely polished weapons of stone. Men probably lived in the Old Stone Age more than ten times the period from the beginning of the New Stone Age until the present. The advent of the Neolithic is placed at about 10,000 B. C.
As soon as the Glacial Ages began, the necessity for some sort of food supply developed, and a result was the hunting stage. Thus began tribal property. A tribe would locate itself with reference to a hunting ground, and then and there would be born the desire to keep that ground—an incipient patriotism. Any encroachment by another tribe would be repelled by force, and thus every tribe would be hostile to every other tribe. The instinct to hold the tribal property would arise simply from the desire to keep the food supply and the developed acquisitive instinct. Pedantic philosophers have sought the origin of ideas of tribal property in tangled metaphysics and in varied speculations, all involving elaborate reasoning in the then human beings. The primeval brute did not reason. When another tribe was encroaching on his food supply, he simply resisted. This is the simple explanation. Any animal will fight for its bone. In the same way men sought to keep their cave dwellings. Thus it happened that the cave and the hunting ground were open to every one of the tribe but to no one else. The game killed by any one of the tribe went to support the tribe, but if it were killed by some one of another tribe, it was taken away from the tribe, so to speak, in possession. Thus grew up the bitter hostility between tribes, and the instinct that it was right to take anything one could from another tribe or any member of it. No possible quarrel over property could arise between members of the same tribe. Savages will despoil another tribe or its members. They will not steal from their own tribe.
Thus, it is necessary to note, in this long development into the hunting stage, fixed elementary ideas of tribal property would develop. While the hunter retained, of course, his weapons as his own, the game he killed and the hunting fields would naturally be regarded as the possession of the tribe. This institution of tribal property was to be retained by savage men for untold ages before the usage or law of property went further. After another long period the institution of tribal property was to develop into family property, from which the passage to individual property would take place almost imperceptibly. But it all goes back to the instinct branded upon men to obtain and keep a food supply. The necessity for storing a supply of food would develop in men, as in all other social creatures, not only the property but the acquisitive instinct, which would become as deeply rooted as the sexual instinct. It was a mere development of that primeval social sense of preserving the herd, and was of just as much compelling power as the instinct to conform one’s own conduct to that of others.
But, after all, the most important effect of the use of weapons and of the hunting stage for producing law was in developing the fighting instinct. The fighting that went on through the migrations of tribes caused by the ebb and flow of the Ice Ages, forced man to become a fiercely predatory animal. Traceable to this hunting state are the two institutions of the capture of females, which would develop long afterwards into marriage by capture, and the capture of other tribesmen and children, resulting in the institution of slavery. Slavery was produced for men just as it was produced for the ants. These developments were important, but not more so than the fact that the fighting instinct and its unrestrained savage passions would lead to fighting and killing within the tribe itself. To the development of law this was a matter of prime importance, since it was opposed to the instinct to protect and perpetuate the tribe. Fighting and killing within the tribe would lead to private war as soon as a notion of the kindred had been developed. The notion of kindred is necessary to the blood feud. From this time forth a new body of law that dealt with differences within the tribe was bound to develop.
To get the full effect of such changes, we must consider other advances. In the long ages men had accomplished more than the mere discovery of the use of weapons and of fire. Clay, when baked, would resist the action of fire. Such vessels of clay would be used for heating water and cooking food. This led to the making of pottery. The cooking of food by broiling over the open fire was well enough when meat was cooked, but the supply of meat was often precarious. With the opportunity resulting from the cooking of plant food, men could pass on to further steps in civilization. This discovery of the uses of pottery seems to have been made in the hunting stage of the cave dwellers. This development led directly to the cultivation of various kinds of wild plants.
Considerable knowledge has been gained of these hunter types, Chellean, Mousterian, Aurignacian, Magdalenian, Cro-Magnon, Azilian, and Solutrian, so called from the localities where the remains have been found. Some of them produced an exceedingly vivid and realistic representation of animals on pieces of bone, or on the walls of their caves. The use of color is striking, but the savage early began to paint himself, and his present female descendants still cling to those primitive means of embellishing, if not improving the countenance. But the story after a long time passes from these ancient hunters to men who had found the secret of domesticating animals: the sheep, supplying wool and warm skins; the cattle, supplying leather; the goat; the camel; even the elephant, and at last the horse. Men had long been wearing some sort of clothing as a protection against cold. It is idle to speak of any developing sense of modesty. Modesty is a result of the forced wearing of clothing to overcome the cold. After the wearing of clothing began and had become a fixed habit, it developed modesty. The weaving of cloth from linen, from wool, from camel’s hair and goat’s hair, began in this age.
Now began the great races of nomads driving their flocks and herds from one pasturage to another. These were the tent dwellers. Whether the domesticating of animals anticipated the family, we cannot tell, but as to the institution of property, the flock and herds stood upon precisely the same ground of a food supply and that property is a part of the self-preserving instinct of the tribal, social community. Just as the tribe had protected its hunting ground, so the tribe would preserve as tribal property its grazing ground. But the nomad stage lends itself to a family development, certainly a development of a kindred, the separation into kindreds, and to property as naturally belonging to the kindred.
Finally came what we may call the discovery of domesticating and improving the wild plants by cultivation of the soil. Men had already advanced to houses in the lake dwelling stage. They now could come together in villages and, with their cultivated fields, and protected by their houses, could attain a much higher stage of civilization. Each tribe would occupy its own village and farming lands. The fields for cultivation among primitive men appear first as tribal property parceled out to families, and so they remained for ages. The fields, of course, are an extension of the food supply and of the instinct in the community to preserve itself. But it is to be kept in mind that some men remained in the nomad stage while others passed on to the agricultural condition. The bases of civilization had thus been laid, and no part of them has ever been lost, except among those present savages who have degenerated from a higher stage.
All these steps would have been entirely useless had man not attained the conception of his own and of another’s personality. This came about through language, and was necessarily predicated upon the living of men in a social state, for language belongs only to the associated state. All other inventions of men pale before the invention of language. Until that invention came, men were indeed, as the Roman poet sings, “a dumb and brutal herd”; but with language all things were opened unto them. Language remained for ages merely spoken, and men reached comparatively high stages of civilization without any written speech. The effect of language cannot be overestimated.
By means of language men share the minds of others, and are enabled after long training to examine their own minds. Without language the realization of personality is psychologically impossible. Reasoning power arises solely from self-consciousness, and as soon as men became conscious of themselves and formed the idea of their own and others’ personalities, they developed a conscience. This all results from the interaction of individual minds. But conscience, after all, is but another phase of the tendency of primeval men to conform their conduct to the general standards. With the advent of the first glimmerings of conscience we have reached the development of the moral instincts, and in after ages law would come to depend upon the moral sentiments.
The two moral sentiments with which law is closely associated and upon which all law depends, are the conceptions of the right and of the just. As we have seen, the social creature developed these customary ways of acting which correspond with his ingrained instinct of preserving his associated community. It is useless to speculate on the aeons required to develop the general conception of right. It was of an infinitely slow and gradual growth. The idea represented numberless individual and herd inductions of the social mind slowly developing into a reasoning mind. These inductions were necessarily judgments upon numberless concrete states of fact. At last a rule of conduct instinctively but consciously felt to be right was evolved, because every one acted in that way, and it must be right. That these judgments were the result of social experience goes without saying, and conduct was said to be right, when language reached the stage capable of expressing the idea, because the social experience showed that such conduct advanced the interests of the social community. What was right was that which accorded with customary ways of acting. The mental processes by which this moral idea of the rightful had been arrived at were not remembered, and they became “the broken potsherds of the past.” The first custom had become a second nature, and each normal social mind of the individuals was furnished with these conceptions of the rightful.
Henceforth the idea of the rightful was instinctive, and it was not furnished by any process of reasoning, as the Socratic dialogues show. The idea of the rightful was solidly buttressed on the sense of shame. Thereupon these instinctive ideas of the rightful became in the mind the directing factors for deliberate reasoning in producing a moral judgment. Since law for primitive man, as we have seen, is simply the generalized conception of the customs acted upon for ages, it must be apparent that the customs result in the moral ideas of what is rightful. Thus it is that Cicero could say that “the mind, the foresight, the deliberate opinion of the community is placed in the laws.” Since law always has been and always will be made by the general opinion and acceptance of the community, it is idle to say that there is no necessary and organic connection between the sentiment of right and the laws.
There is, however, another moral concept that enters into law, for it determines that a law must be a rule for all alike. Every man of ordinary intelligence knows that there is a difference between right and justice. Just what the difference is, he would have no little difficulty in explaining, but he knows that there is a difference, and if he should analyze the conception of justice to the heart of it, he would be compelled to say that justice is the putting of all men on the same basis, in other words, justice requires a rule to be applied to all alike. Going back to the primeval man in the social state, we have found that the natural condition is equality, and the fundamental notion at the basis of justice is, although primordial men were incapable of formulating it, that it is necessary for men living in a social state in a homogeneous condition of society to be granted and to have the same recognition, that is to say an equal right to an equal recognition. Every man has the right to act as others act. Hence each man has the right to do and to act in the customary way in which the other men are acting. It is a truism that customary ways of acting would never develop unless each man was at liberty to act in that way. This is all that liberty means. Yet profound philosophers like Kant and Hegel have thought that they made a discovery when they found the basis of law in liberty and equality. This is simply the assertion that law is based upon customary ways of acting. This thought simply spells equality, or, looked at from the standpoint that the law permits such conduct, it means an equal liberty. But why the philosophers should trumpet over this discovery of liberty and equality as the basis of law passeth all human comprehension. The short answer is that if members of a social community are to develop a custom by all of them acting in a certain way, they must have an equal liberty to act in that way. Without such liberty and equality there could be no custom and hence no law.
When, therefore, primeval men began to fight within the tribe and inflict personal injuries upon each other (and we speak of personal injuries, for injuries as to property were as yet improbable) a custom would develop consonant with justice and right, first, that for a man to injure another was wrong, because it was out of the customary ways of acting and it interfered with the social body and its peace and preservation; and secondly, if an injury was inflicted, justice and equality required that the injured—or, if he was killed, his kindred—had the right to be placed back upon an equality with the injurer. We are before a time when the idea of a compensation for an injury was conceived by humankind. Therefore the only conceivable right was the one to exact the very same injury, that is, the right to be put back upon an equality. We are as yet in the infancy of the law of damages, where no other recompense could be conceived. There was no possible recompense except the exact equivalent given by the lex talionis; an eye for an eye and a tooth for a tooth, or “whosoever sheddeth man’s blood, by man shall his blood be shed.” When it came to be applied, it was not only right and just, but no other remuneration or equivalent could be found. The application of these primitive conceptions will be later shown, but it is here to be said that it ought to go without saying that the idea of justice must have developed long before there were any introspective questionings as to the rightful. Right became a much more generalized conception than justice, for it carried, when fully developed, all the notions involved in proper and correct conduct, when justice was not at all concerned. Righteousness can be applied to conditions of mind, where conduct toward a fellow being is not necessarily involved.
In later ages in the highly developed Roman law of the jurisconsults which thirteen hundred years ago the Emperor Justinian caused to be compiled in the Roman Digest or Pandects, there was prefaced to the great mass of particular rules a general sketch of the law, patterned after the manual of a great law teacher called Gaius. This manual, both as the manual of Gaius and as that of Justinian’s compilation, was called the Institutes of the law. At the very head of the Institutes is a definition of justice which is borrowed from a much earlier Roman definition. Justice is there said to be “the constant and perpetual willingness to render to each one his right.” Among primeval men, among the Roman jurists, and among us to-day is the prevailing idea that what is due to each man, all men have the right to demand, and this demand can be answered only by a general rule which applies alike to all in the community.
Adverting for a moment to the customary ways of acting in the social state and the long ages required to develop them, it is plain that customs as a second nature would be clung to with the greatest stubbornness, for it is easier to act in the habitual way. Even among highly cultivated men “to act is easy, but to think is hard.” We should expect to find customs in full force long after they should have been changed, and this is the history of law. That history may be summed up by saying that men cling to their customs. It is here that ideas of right among reasoning men begin to diverge from ideas of justice. To be just, men must act in the accustomed way, else liberty and equality are lost and men who are barred from the custom stand in a condition of unendurable shame. But to be suited to the newly conceived idea of the rightful in conduct men must develop a new custom; and this takes a long time. Yet, given time enough, the customs and habits tend to follow slowly and hesitatingly toward the rightful in the changing circumstances of a new life. So by the new custom, when properly developed and had a value, all sorts of injuries came to be compensated for in property. This will fully appear in the further history of the law.
We turn now to other factors causing the development of law. For a length of time of which we can form little conception, all kinship was traced only through the mother, and relationship through the father was unknown. But somewhere on the road the initial institution of a marital union developed, and in the nature of things this must have resulted from the knowledge obtained by human beings that children are born of the conjugation of the male and the female. It dawned on the animal beginning to think that some part of the child belonged to the father. But the fact which seems well attested, that relationship was traced only in the female line for many ages, points to the further fact that a family based on the relationship of children through the apparent and proven fact of the mother, was created before the mother became tied to a particular man. So the family kinship was a kinship wholly through the mother. Whether the first type of family consisted of a woman with several husbands or several women and several men promiscuously united in one family, or whether the family consisted simply of a mother and children will probably never be determined. It should be apparent that the development of the idea of the kindred was a great step in itself. Its tendency to create sentiments of sympathy and affection could not but make it a strong civilizing element. Especially strong would be the effect of the idea of the kindred, along with increasing the number of objects of acquisition, in spreading the idea that property belongs to the kindred; and thus advancing mankind found the tribes dividing into matriarchal families with well defined rights of ownership in particular objects of property.
If we keep in mind that the ineradicable tendency of human beings is to continue social habits long after reasons for a change have arisen, and also that the ideas of chastity, fidelity, and jealousy took long ages to come into existence, we should conclude that probably promiscuity, as we have defined it above, continued long after the family of a kindred came into existence. This would account for the long ages of the prevalence of the matriarchal family where the mother rules the family and a father has no part. There is no question as to this fact. Basques in northern Spain and southern France, a very primitive race, show strong traces of this ancient mother-headed and mother-ruled family. The legal rule that relationship and succession to the family estate belonged wholly to relatives through the mother and that any relationship through the father was not recognized settles the question.
In the end, however, the instinct to propagate uniting with the instinct which was just as strong, to protect the children, joined to the acquired knowledge of paternity, would lead to some form of permanent union of man and woman. In no other way could the father’s right in the children be preserved. The curious fact is that the family of the woman, of which her brothers formed a part, was clearly established before any fixed marital union existed. And long after permanent marriages existed, the husband was a mere skulker on the outside of the family, with no authority and no place in the family, and with little if any right in the family property. It is apparent that as soon as the idea of a kindred developed and the tribe became made up of different kindreds, a more complicated stage of human existence had been reached. It is probable that this stage was reached when men were hunters. A woman or several women who were sisters with their brothers would form a natural unit, and the property ownership of such a family would be extended to the game, as a means of support for the family.
In the passage to the nomad stage the flocks and herds would thus become family property. But the idea that men fought for their women with club and nail in their caves seems rank nonsense when applied to a stage of human life where no such sentiments as chastity or fidelity in the woman, or jealousy in the man, existed and the customs or laws were based on a matriarchal family.
There is another reason for the development of the patriarchal family than the one of acquired knowledge of paternity. Women were captured in tribal fighting, and the captive necessarily belonged to the one who took her. Or women were stolen from another tribe from a cause that should here be stated. Property in women and their children would arise. Without speculating on reasons, it is enough to state the fact that among the tribes who passed on their laws to civilized men a custom arose that men must not marry within their own kindred. In the matriarchal stage it seems plain why such a custom might arise, since all the children were brothers, all the uncles were fathers, and all the aunts were mothers. The old and feeble, of course, caused no trouble; they were brutally abandoned and, if not killed, were left to die. This original type of marriage is the so-called marriage outside the kindred or tribe, called exogamous, which probably began with the development of kindreds. On the other hand, the effects of capturing women with the resultant fighting would at least compel the weaker tribes to interdict the capture, and to insist that marriage should take place only with other kindreds in the tribe, and thus would arise the marriage within the tribe, called endogamous marriage. This would lead directly to the marriage by purchase.
In this stage of society, three forms of customary law had their beginnings. As a habit arising from doubtful fatherhood, the children were required, at some stage of development, to be acknowledged by the father, and in consequence the newborn child was at his disposal to kill or to let live. The hideous practice of infanticide has been given other origins, but they do not seem to be as reasonable as the one that the newborn child was at the father’s disposal. The direct inherited connection of such a right with a former stage of promiscuity is apparent. Whatever the explanation may be, the practice is fully established, and among the dark shadows cast in that former brutish life of man, none are so dark as those arising from infanticide, especially of the female children. Men continued it into the half-civilized stage and it passed into human sacrifice. In the pastoral age, male children were more valuable. But the father’s power of life and death over his children is a fixed fact of the patriarchal family.
With the institution of marriage came the development of a large body of custom as to different kinds of marriage. Marriage by capture and marriage by purchase, with all the other regular and irregular unions, need not delay the story. We may remark in passing that trial marriages, which certain childishly minded persons now advocate, were tried in the savage state among the Scotch, the Scandinavians, the Celts, and the Germans.
Gradually the change into the form of family where the husband was the head of the family led to the right to participate in and succeed to the family property being confined to the male line. This passage to the type of family where the male was the head and only relationship through males was recognized by the laws, probably belongs to the nomad or pastoral stage, for the nomadic life would necessarily lead to separations into families, and the natural physical superiority of the male would come into play. It is a curious fact that in Latin the general term for blood-kindred, cognati, originally indicated relationship through the female, although it came to mean any blood relationship, while the later word, agnati, denoted relationship purely in the male line. How this patriarchal family, with the father as the head of the family, further developed, will be more properly noticed later on, but to the savage stage of doubtful paternity belongs the curious custom of the couvade, where the husband took to his bed and simulated the process of his giving birth to the newborn child. He felt that he must make some proof that the child was his own by public proclamation of his labor. Legal fictions come down from a very remote past.
When marital unions became fixed, the physical superiority of the male, uniting with his other instincts, would sometimes lead to the condition of a man with several mates. But it is always to be borne in mind that a polygamous family would be the exception, not the rule, on account of the inability of the average man to support more than one household. The working of this rule was seen among the Mormons in late years, where only a small proportion of the heads of families were polygamists. As soon as this possession of the female happened there was an opportunity to develop the ideas of chastity and fidelity, with a feeling of jealousy on the part of the male. The reaction of these new phases of life on the law are apparent, and into the law enters the institution of the male’s exclusive possession of the female with her enforced fidelity. The woman now could become guilty, along with her paramour, of the capital crime of adultery.
The clan or tribe thus had become divided into numbers of families, first matriarchal and later patriarchal families. But these men who had always lived in social communities had become accustomed to the fact that one tribe was responsible as a whole to another tribe for any injury by a member of one tribe to a member of the other tribe. Hence in the development of the family, however it was developed, the one kindred or family was responsible to another kindred or family for any injury by a member of the one family to a member of the other family. It resulted from the social life that these primeval men could not think in terms of the individual. They clung to their ancestral ways and habits of thought. All law was drawn in the form of responsibility of one kindred for all its members to another kindred for injuries to members of the latter kindred. So it was in the case of property, first as tent dwellers with flocks and herds, later as village dwellers with plots of ground, as between tribes the property was recognized only as the property of a tribe, but within the tribe property, except the real estate and afterwards the property conception in real estate, was recognized only as the property of the family. The same responsibility of kindred to kindred applied to injuries to property. To Plato, who like most philosophers thought that he was intended for a lawgiver, although he had little comprehension of the fact that men cannot be molded by laws to a philosopher’s model, it seemed that undifferentiated family property and the responsibility of the whole family were the ideals to be attained by law, even though the Greeks in his time had passed beyond this primitive condition.
Another element of this primeval life must be taken into account for the effect which it had upon the development of law. This creature found himself in a world of life and death, as well as of great natural forces, earthquake, storm, thunder, lightning, and flood. We can form little conception of what Europe was in the periods of the Ice Ages, with enormous rivers, vast lakes, and endless morasses. The inundations from melting snow and ice can hardly be imagined. These natural phenomena were terrifying. Magic, animism, and shamanism resulting from the terrors and fears of this poor savage need not detain us. A vast mass of different customs as to death, burial, and sacrifice were a natural result. The prevalent savage notions of things tabooed or forbidden are also of much importance in the law. Whatever may have been at the basis of the belief in spirits both good and evil, it is apparent that the conception of a spirit could not have been formed until men through language had gained the idea of personality.
The human race has never entirely recovered from the stage of fear. Every natural force and phenomenon was a spirit or a god. Devils and angels, spirits of the wood and stream, the lightning, the storm, the tempest, and the flood, the gentle and benign rulers of the spring and the harvest, the fell deities of danger and death, all were required to be propitiated by precious offerings. Every natural object became endowed with a spirit as a god. The gloomy history of human sacrifice and the widely disseminated practice of immolating the widow on the funeral pyre, we need not dwell upon. The frightful religious orgies where the savage returned to the original condition of promiscuity need not be considered. Just where in this sequence of savage thinking came in the worship of ancestors, we need not stop to inquire. It was a stage of savage belief that came to later men, and it created the law of adoption and of wills applied to family property. These practices and beliefs may have produced some temporary good, but they have left stains on the human mind that have been slowly eradicated.
One feature of this gloomy chronicle deserves notice. No doubt in these ages mental irregularities and insanity were more common than they are to-day, but it would be strange if an insane person should not be thought far more capable than an ordinary being. It long remained the practice for the prophets and sibyls and dispensers of oracles to imitate the ravings of the maniac. The original practices of wizards and magicians were probably based upon imitations of maniacal excitement. Persons who could go into a trance and afterwards relate extraordinary things seen or heard, had a far more valuable vein of exploitation than they have even to-day. There seems to be some connection between these kinds of men and the priests as they were developed. The priest gained his power by pretending to intervene between the savage and some god. The subject is shrouded in mystery, but we can reach the point that is required for the development of law by noticing that religions generally speaking developed into two kinds, one where there were many gods and goddesses identified with all sorts of objects and natural processes, and another where there was one god as the god of a particular tribe, who was at times in opposition to other gods of various kinds, and at other times in opposition to some particular malign deity. This fact and the production of the particular caste of priests is sufficient for our purposes here.
The connection of the matter with the law is that the law came to be the particular possession of the priests, who were considered as being able to intervene between men and their gods, and a mass of law was produced requiring particular conduct toward the gods. By a natural process the laws came to be ascribed by the priests to the god or gods. It is apparent that when the laws came to be ascribed to the god, they would still more tend to crystallize and become unalterable. The laws had now become divine. This belief belongs both to Aryans and to Semites and long formed a working influence in medieval and modern law.
This history has now proceeded to the point where the raw material, so to speak, of law has been ascertained. The fundamental physical factors, the raw human animal, the social community, the deep-seated, ingrained social instincts, the gradually expanding factors of civilization, the matriarchal family, the fixed domestic relations, the patriarchal family, the invention of a weapon, the expanding social type of mind, the development of the fighting instinct, the deep-seated acquisitive instinct for gathering and holding property, all modified by the slowly developing moral ideas of right and justice, constitute the raw material. It will next be in order to consider the races from which the development of law as we have it has proceeded, and to set forth first the primitive and then the ancient law, with the social basis that produced them.
But at this point it is necessary to make an observation, that should be axiomatic. There is, and in the nature of things there can be, no law before a condition arises to which it can be applied. Such law is unthinkable, yet John Chipman Gray in his book on The Nature and Sources of Law thought that he was proving something when he inquired, “What was the law in the time of Richard Coeur de Lion on the liability of a telegraph company to the person to whom a message was sent?” Could anything be more absurd? He was demonstrating merely that he did not know what law was. He might just as well inquire: “What debt did France owe the United States when Alexander the Great ruled in Babylon?” A rule of law is a fact as impalpable as a debt, arising out of human relations. It cannot exist where the relations on which it is founded do not exist.
Before leaving this subject of the law among primordial men we may dismiss once for all the schemes of socialistic communism. Never again can the human race or the human mind approach a condition where such an order of life is possible. With language and reasoning self-consciousness became possible, and a conscience developed in men the need for striving for consciously moral ends. The polity of the ants became from that period of development absolutely impossible among even barbarians. Then and there was founded “the one great society alone on earth, the noble living and the noble dead.” It became a truth that man doth not live by bread alone; his truer and higher life slowly developing came more and more to rest upon those higher attributes of personality that doom forever a mere mechanical adaptation of men to Nature’s decrees. The thinking, reasoning individual had emerged and step by step, even in sorrow, want, or obloquy, he was to rise above his surroundings. No longer was it possible for the individual to be swallowed up in the mass. No longer could all individuals be alike endowed with instincts acting precisely in the same way. The customary ways of acting, the law itself, must become a changing set of rules. New situations, wider mental horizons would create new duties. Time would make “ancient good uncouth.” Those very scientists who call conscience a delusion are compelled to act in their own lives upon a power in themselves to choose good instead of evil. The laws became constructed first upon the responsibility of the kindred and then upon the individual’s responsibility for his own acts, and without this responsibility social order is impossible among men.
But the very basis of legal responsibility and hence all basis in justice of law is denied by certain scientists and criminologists. They deny this freedom of choice. They maintain that free will is a delusion. They assert that man cannot rise to the realm of choice, that his choice is dictated by natural causes. The theological predestinarians substitute for natural causes the will of God. But the answer to all this is plain. When one speaks of freedom of choice, he means choice in that conduct which is possible to men, not choice in the things that are impossible. This freedom of choice is a condition of mind and results in an act of the mind. It is not a material thing. If a man believes that he has this freedom of choice—and all men believe it, for all act upon that belief—each man is as a demonstrated fact enjoying the condition of freedom of the will. But not all men are alike capable of choice in all things where a choice is possible. Few men can die as did Socrates for an abstract belief in his duty to obey the laws. The great mass of men are imperfectly capable of choice. The highest are capable, the lowest are not at all. A poet has set forth this truth in beautifully simple words: