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