individuals, but as ties between entire groups, classes or generations.
Instead of a mother and a father a man speaks of fathers
and mothers; all the individuals of a certain group are deemed
husbands or wives of corresponding individuals of another group;
sisters and brothers have to be sought in entire generations, and
not among the descendants of a definite and common parent, and
so forth. There are variations and types in these forms of
organization, and intermediate links may be traced between
unions of consanguine people—brothers and sisters of the same
blood—on the one hand, and the monogamic marriage prevailing
nowadays, on the other; but the central and most striking fact
seems to be that in early civilizations, in conditions which we
should attribute to savage and barbarian life, marriage appears
as a tie, not between single pairs, but between classes, all the
men of a class being regarded as potential or actual husbands
of the women of a corresponding class. Facts of this kind
produce very peculiar and elaborate systems of relationship,
which have been copiously illustrated by Morgan in his tables.
In his Ancient Society he attempted to reduce all the known
forms and facts of marriage and kinship arrangements to a
comprehensive view of evolution leading up to the Aryan,
Semitic and Uralian family, as exhibiting the most modern
type of relationship.
These observations, in conjunction with Bachofen’s and McLennan’s teaching on mother-right, brought about a complete change of perspective in the comparative study of man and society. The rights of ethnologists to have their say in regard to legal, political and social development was forcibly illustrated from both ends, as it were. On the one hand, classical antiquity itself proved to be a rather thin layer of human civilization hardly sufficient to conceal the long periods of barbarism and primitive evolution which had gone to its making. On the other hand, unexpected combinations in regard to family, property, social order, were discovered in every corner of the inhabited world, and our trite notions as to the character of laws and institutions were reduced to the rank of variations on themes which recur over and over again, but may be and have been treated in very different ways.
There is no need to speak of the use made of ethnological material in the wider range of anthropological and sociological studies—the works of Tylor, Lubbock, Lippert, Spencer are in everybody’s hands—but attention must be called to the further influence of the ethnological point of view in comparative jurisprudence. An interesting example of the passage from one line of investigation to another, from the historical to the anthropological line, if the expression may be used for the sake of brevity, is presented in the works of one of the founders of the Zeitschrift für vgl. Rechtswissenschaft—Franz Bernhöft. He appears in his earlier books as an exponent of the comparative study of Greek and Roman antiquities, more or less in the style of Leist. Like the latter he was gradually incited to draw India into the range of his observations, but unlike Leist, he ended by fully recognizing the importance of ethnological evidence, and although he did not do much original research in that direction himself, the influence of Bachofen and of the ethnologists made itself felt in Bernhöft’s treatment of classical antiquity itself: in his State and Law in Rome at the Time of the Kings he starts from the view that patricians and plebeians represent two ethnological layers of society—a patriarchal Aryan and a matriarchal pre-Aryan one.
But, of course, the utmost use was made of ethnological evidence by writers who cut themselves entirely free from the special study of classical or European antiquities. The enthusiasm of the explorers of new territory led them naturally to disregard the peculiar claims of European development in the history of higher civilization. They wanted material for a study of the genus homo in all its varieties, and they had no time to look after the minute questions of philological and antiquarian research which had so long constituted the daily bread of inquirers into the history of laws. The most characteristic representative of the new methods of extensive comparison was undoubtedly A. H. Post (1839–1895)—the author of many works, in which he ranges over the whole domain of mankind—Hovas, Zulus, Maoris, Tunguses, alternating in a kaleidoscopic fashion with Hindus, Teutons, Jews, Egyptians. The order of his compositions is systematic, not chronological or even ethnographical in the sense of grouping kindred races together. He takes up the different subdivisions of law and traces them through all the various tribes which present any data in regard to them. His method is not only not bound by history, it is opposed to it. He writes:—
“The method of comparative ethnology is different from the historical method, inasmuch as it collects the given material from an entirely distinct point of view. Historical investigation tries to get at the causes of the facts of rational life by observing the development of these facts from such as preceded them within the range of separate kindreds, tribes and peoples. The investigation of comparative ethnology inquires after the causes of facts in national life by collecting identical or similar ethnological data wherever they may be found in the world, and by drawing inferences from these materials to identical or similar causes. This method is therefore quite unhistorical. It severs things that have been hitherto regarded as closely joined and arranges these shreds into new combinations” (Grundriss, i. 14).
This is not a mere paradox, but the necessary outcome of the situation in respect of the material used. What is being sought is not common origin or a common stock of ideas, but recourse to similar expedients in similar situations, and it is one of the most striking results of ethnology that it can show how peoples entirely cut off from each other and even placed in very different planes of development can resort to analogous solutions in analogous emergencies. Is not the custom of the so-called Couvade—the pretended confinement of the husband when a child is born to his wife—a most quaint and seemingly recondite ceremony? Yet we find it practised in the same way by Basques, Californian Indians, and some Siberian tribes. They have surely not borrowed from each other, nor have they kept the ceremony as a remnant of the time when they formed one race: in each case, evidently the passage from a matriarchal state to a patriarchal has suggested it, and a very appropriate method it seems to establish the fact of fatherhood in a solemn and graphic though artificial manner. Again, an inscription from the Cretan town of Gortyn, published in the American Journal of Archaeology (2nd series, vol. i., 1897) by Halbherr, tells us that the weapons of a warrior, the wool of a woman, the plough of a peasant, could not be taken from them as pledges. We find a similar idea in the prohibition to take from a knight his weapons, from a villein his plough, in payment of fines, which obtained in medieval England and was actually inserted in Magna Carta. Here also the similarity extends to details, and is certainly not derived from direct borrowing or common origin but from analogies of situations translating themselves into analogies of legal thought. It may be said in a sense that for the ethnological school the less relationship there is between the compared groups the more instructive the comparison turns out to be.
The collection of ethnological parallels for the use of sociology and comparative jurisprudence has proceeded in a most fruitful manner. By the side of special monographs about single tribes or geographical groups of tribes, such as Kamilaroi and Kurnai, by L. Fison & A. W. Howitt (1880), and The Native Tribes of Australia, by Baldwin Spencer & F. G. Gillen (1899), the whole range of ethnological jurisprudence was gone through by Wilken in regard to the inhabitants of the Dutch possessions in Asia, by M. M. Kovalevsky in regard to Caucasians, &c. As a rule the special monographs turned out to be more successful than the general surveys, but the interest of the special monographs themselves depended partly on the fact that people’s eyes had been opened to the recurrence of certain widespread phenomena and types of development.
5. Ethnologists of Post’s school have not had it entirely their own way, however. Not only did their natural opponents, the philologists, historians and jurists, reproach them with lack of critical discrimination, with a tendency to disregard fundamental distinctions, to wipe out characteristic features, to throw the most disparate elements into the same pot. In their own ranks a number of conscientious and scientifically trained
