but with a linguist and a student of cultural history. His
training made him especially fit to trace the national affinities
in the data of language, and the sense of the intimate connexion
between the growth of institutions on one side, of words and
linguistic forms on the other, underlies all his investigations.
But Schrader testifies also to another powerful influence—to that
of Victor Hehn, the author of a remarkable book on early civilization,
Kulturpflanzen und Hausthiere in ihrem Übergang aus Asien
in Europa (1st ed., 1870; 7th ed., 1902), dealing with the migrations
of tribes and their modes of acquiring material civilization.
Although the linguistic and archaeological sides naturally predominate
in Schrader’s works, he has constantly to consider
legal subjects, and he strives conscientiously to obtain a clear and
common-sense view of the early legal notions of the Aryans.
Speaking of the “ordeals,” the “waging of God’s law,” for
example, he traces the customs of purification by fire, water,
iron, &c., to the practice of oaths (Sans. am; Gr. ὄμνυμι; O. Ital.
omr = first group; O. Ger. aiþs, Ir. óeth = second group; O.
Norse rota, Arm. erdnum = I swear = third group). The central
idea of the ordeal is thus shown to be the imprecation—“Let
him be cursed whose assertion is false.”
The comparative study of the Aryan group assumed another aspect in the works of Sir Henry Maine. He did not rely on linguistic affinities, but made great use of another element of investigation which plays hardly any part in the books of the writers mentioned hitherto. His best personal preparation for the task was that he had not only taught law in England, but had come into contact with living legal customs in India. For him the comparison between the legal lore of Rome and that of India did not depend on linguistic roots or on the philological study of the laws of Manu, but was the result of recognizing again and again, in actual modern custom, the views, rules and institutions of which he had read in Gaius or in the fragments of the Twelve Tables. The sense of historical analogy and evolution which had shown itself already in the lectures on Ancient Law, which, after all, were mainly a presentment of Roman legal history mapped out by a man of the world, averse from pedantic disquisitions. But what appears as the expression of Maine’s personal aptitude and intelligent reading in Ancient Law gets to be the interpretation of popular legal principles by modern as well as by ancient instances of their application in Village Communities, The Early History of Institutions, Early Law and Custom. The evolution of property in land out of archaic collectivism, ancient forms of contract and compulsion, rudimentary forms of feudalism and the like, were treated in a new light in consequence of systematic comparisons with the conditions not only of India but of southern Slavonic nations, medieval celts and Teutons. This breadth of view seemed startling when the lectures appeared, and the original treatment of the subject was hailed on all sides as a most welcome new departure in the study of legal customs and institutions. And yet Maine set very definite boundaries to his comparative surveys. He renounced the chronological limitation confining such inquiries to the domain of antiquaries, but he upheld the ethnographical limitation confining them to laws of the same race. In his case it was the Aryan race, and in his Law and Custom he opposed in a determined manner the attempts of more daring students to extend to the Aryans generalizations drawn from the life of savage tribes unconnected with the Aryans by blood.
Thus, notwithstanding all diversities in the treatment of particular problems, one leading methodical principle runs through the works of all the above-mentioned exponents of comparative study. It was to proceed on the basis of common origin and on the assumption of a certain common stock of language, religion, material culture, and law to start with. What Pictet, Leist, Schrader, and Maine were doing for the Aryans, F. Hommel, Robertson Smith and others did in a lesser degree for the Semitic race.
4. The literary group which started from the discoveries of comparative philology and history was met on the way by what may be called the ethnological school of inquirers. The original impetus was given, in this case, by jurists and historians who took up the study in the field of ancient history, but treated it from the beginning in such a way as to break up the subdivisions of historic races and to direct the inquiry to a state of culture best illustrated by savage customs. The first impulse may be said to have come from J. J. Bachofen (Mutterrecht, 1861; Antiquarische Briefe, 1880; Die Sage von Tanaquil). All the representatives of Aryan antiquities are at one in laying stress on the patriarchal and agnatic system of the kindreds in the different Aryan nations; even Leist, although dwelling on the importance of cognatic ties, looks to agnatic relationship for the explanation of military organization and political authority. And undoubtedly, if we argue from the predominant facts and from the linguistic evidence of parallel terms, we are led to assume that already before their separation the Aryans lived in a patriarchal state of society. Now, Bachofen discovered in the very tradition of classical antiquity traces of a fundamentally different state of things, the central conception of which was not patriarchal power, but maternity, relationship being traced through mothers, the wife presenting the constant and directing element of the household, while the husband (and perhaps several husbands) joined her from time to time in more or less inconstant unions. Such a state of society is definitely described by Herodotus in the case of the Lycians, it is clearly noticeable even in later historical times in Sparta; the passage from this matriarchal conception to the recognition of the claims of the father is reflected in poetical fiction in the famous Orestes myth, based on the struggle between the moral incitement which prompted the son to avenge his father and the absolute reverence for the mother required by ancient law. Although chiefly drawing his materials from classical literature, Bachofen included in his Antiquarian Letters an interesting study of the marriage custom and systems of relationship of the Malabar Coast in India; they attracted his attention by the contrasts between different layers of legal tradition—the Brahmans living in patriarchal order, while the class next to them, the Nayirs (Nairs), follow rules of matriarchy.
Similar ideas were put forward in a more comprehensive form by J. F. McLennan. His early volume (Studies in Ancient History, 1876) contains several essays published some time before that date. He starts from the wide occurrence of marriage by capture in primitive societies, and groups the tribes of which we have definite knowledge into endogamous and exogamous societies according as they take their wives from among the kindred or outside it. Marriage by capture and by purchase are signs of exogamy, connected with the custom in many tribes of killing female offspring. The development of marriage by capture and purchase is a powerful agent in bringing about patriarchal rule, agnatic relationship, and the formation of clans or gentes, but the more primitive forms of relationship appear as variations of systems based on mother-right. These views are supported by ethnological observations and used as a clue to the history of relationship and family law in ancient Greece. In further contributions published after McLennan’s death these researches are supplemented and developed in many ways. The peculiarities of exogamous societies, for instance, are traced back to the even more primitive practice of Totemism, the grouping of men according to their conceptions of animal worship and to their symbols. McLennan’s line of inquiry was taken up in a very effective manner not only by anthropologists like E. B. Tylor or A. Lang, but also in a more special manner by students of primitive family law. One of the most brilliant monographs in this direction is Robertson Smith’s study of Kinship and Marriage in Arabia.
But perhaps the most decisive influence was exercised on the development of the ethnological study of law by the discoveries of an American, Lewis H. Morgan. In his epoch-making works on Systems of Consanguinity (1869) and on Ancient Society (1877) he drew attention to the remarkable fact that in the case of a number of tribes—the Red Indians of America, the Australian black tribes, some of the polar races, and several Asiatic tribes, mostly of Turanian race—degrees of relationship are reckoned and distinguished by names, not as ties between
