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:
On the rock primeval hidden in the past its bases be,
Block by block the endeavoring ages built it up to what we see.
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