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