him, went confidently to his death rather than disobey the law.
Pope in his well-known lines asks a question and answers it:
Why has not man a microscopic eye?
For this plain reason, man is not a fly.
And if we ask why man has not developed a set of laws that all men instinctively obey, without question and without faltering, the answer is the plain reason that man has left that stage behind him. He has all of the intelligence of the ant but he has one infinitely higher attribute, that puts upon him certain evils, but at the same time opens to him an endless heritage of progress.
Every act of the ant is purely instinctive. She acts as she does because she cannot act otherwise. She has no choice. Human beings also have instincts. The great mass of our daily acts is purely instinctive, the experimental psychologists now tell us. Some of those instincts have improved and grown better with the improvement of the race. Our emotions of fear or bravery, of pity or harshness, of sympathy or ill will, of envy or generosity, of love or hatred, are not reasoned conclusions. When we are moved to tears or laughter, when our hearts glow and our eyes shine at hearing or reading of noble and heroic deeds, when we feel keenly the suffering of man or beast, when our minds are touched to generous compassion, we feel and act by instinct. Love for our parents or family, love of the home in which our eyes opened to the light, faithful affection for the streets over which our childish feet were led, and love for our country whose flag floating in the air is an inspiration and an undying hope, no less come to us by our instincts.
At the same time our self-assertion, our greed, envy, and covetousness, our feelings of self-interest and selfishness, our lowest attributes of sensuality or lust, all the influences of the body on the mind, are no less instinctive. Men mainly differ in the extent to which the intellect commands these instincts that have been inherited from the savage. Had men remained the creatures of merely instinctive intelligence they could doubtless have peopled the earth; they could have developed communities of a high order living under an absolute law reigning over individuals who would never violate the law. They would have developed a stability of institutions and thereby have become incapable of progress. But man has developed a higher type of mind capable of infinite expansion and of overcoming natural surroundings, and has thereby become able by his own purposeful exertions to keep constantly mounting to higher realms of existence.
While the communists have made an impossible application of the lesson of the ants, it seems possible that some philosopher, calling himself a jurist, as philosophers have the hardihood to do, thinking on the problems of social life as developing rules of law to govern the conduct of individuals toward one another, might have hit upon the inference that men must once have lived in a condition when they, too, would be as helpless in the grasp of their rules of social life as are the ants. If men had remained without any reasoning power whatever, they would have been helpless to change. The philosopher Hobbes, who claimed to be a jurist, once cast his eye upon these natural communities of ants, at a day before the evolutionary conception was at all understood. But Hobbes was definitely committed to the dogma that human law is a rule imposed by a superior ruler upon an inferior subject, and that not nature but authority creates law. This dogma long made jurisprudence a nightmare. Hobbes at once dismissed the ants as being wholly useless for a jurist’s investigation. No doubt he saw that the polity of the ants entirely refuted his theory of law, and it was too much to ask of a philosopher that he should abandon his theory out of a regard for facts. The fact, however, remains that a large part of the law has always been dictated by natural causes and much of our jurisprudence is and must remain, however we disguise it, as inevitable as the jurisprudence of the ants.
How much more inspiring it is to believe, as the story of the law proves, that the creature man has achieved his own destiny! Grant that he is obedient to natural laws so far as he must be, yet as a docile echo of those laws, by the force of reasoning power alone, he has steadily rounded and continues to round the vast orb of his fate. No one can look at the story of the law and not be a firm believer in the future of the race. The informed lawyers, in spite of their often gloomy views, must be the true optimists. Legal history teaches that the science of jurisprudence, without which progress would have been impossible, is not the work of the few but of the many, not the work of lawgivers or of great men, but the steadily and silently built structure of voiceless millions, “who bravely led unrecorded lives and dwell in unvisited tombs.”
It is a sound corrective to our thinking to remember, in the words of a great scientist, that “what we are is in part only of our own making; the greater part of ourselves has come down to us from the past. What we know and what we think is not a new fountain gushing fresh from the barren rock of the unknown at the stroke of the rod of our own intellect; it is a stream which flows by us and through us, fed by the far-off rivulets of long ago. As what we think and say to-day will mingle with and shape the thoughts of men in the years to come, so in the opinions and views which we are proud to hold to-day we may, by looking back, trace the influence of the thoughts of those who have gone before.” It is in the history of the law, far more than in any other social science, that we catch from its very beginning the great corporate life of humanity which has made us what we are.
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