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
