It is much more difficult to make out the share of direct bor rowing in the case of peoples who might conceivably have in fluenced one another. A hard and fast rule cannot be laid down in such cases, and everything depends on the weighing of evidence and sometimes on almost instinctive estimates. The use of a wager for the benefit of the tribunal in the early procedure of the Romans and Greeks, the sacramentum and the rpvraveta, with a similar growth of the sum laid down by the parties in proportion to the interests at stake, has been explained by a direct borrow ing by the Romans from the Greeks at the time of the Twelve Tables legislation (Hofmann, Beitrage zur Geschichte des griechischen und romischen Rechts). No direct proof is available for this hypothesis, and the question in dispute might have lain for ever between this explanation and that based on the analogous development in the two closely related branches of law. The further study of the legal antiquities of other branches of the "Aryan" race leads one to suppose, however, that we have actually to do with the latter and not with the former eventuality. Why should the popular custom of the V zddni in Bohemia (Kapras, "Das Pfandrecht in altbohmischen Landrecht," Z. fiir vgl. Rw. xvii. 424 seq.), regulating the wager of litigation in the case of two parties submitting their dispute to the decision of a public tri bunal, turn out to be so similar to the Greek and the Roman process? And the Teutonic Wedde would further countenance the view that we have to do in this case with analogous expediency or, possibly, common origin, not loans.
Disconnected Analogies.—This leads to the consideration of what we may call disconnected analogies. They are instructive in so far as they go back, not to any continuous development, but to the fundamental, psychological and logical unity of human nature. In similar circumstances human beings are likely to solve the same problems in the same way. But while dwelling on con siderations which may disprove the assumption of direct loans, we must not omit to mention circumstances that may render such an assumption the best available explanation for certain points of similarity. We mean especially the recurrence of special secondary traits not deducible from the nature of the relations compared. Terminological parallels are especially convincing in such cases. An example of most careful linguistic investigation attended by important results is presented by Thomsen's treat ment of the affinities between the languages and cultures of the peoples of northern and eastern Europe in his Uber den Einfluss der germanischen Sprachen auf die Finnisch-lappischen (trans. E. Sievers, 187o), p. 166, seq. (cf. the same writer's Relations be tween Ancient Russia and Scandinavia and the Origin of the Rus sian State, p. 127 seq., and Miklosich, "Die Fremdworter in den slavischen Sprachen," Denkschriften der Wiener Akademie, Ph. hist. Klasse, XV.).
The Diffusionists.—It is in the light of the foregoing con siderations that the claims of the recent Diffusionists, G. Elliott
Smith and W. J. Perry, had best be judged. Indeed, had they paid a little more regard to them their original and suggestive theories might have been even more numerous, and there certainly would have been fewer extravagances for their critics to tax them with. For some very temperate criticism, see R. R. Marett, The Dif fusion of Culture. On the subject of borrowings generally, see Lowie, Primitive Society, and for a psychological discussion of the mechanism of diffusion F. C. Bartlett, Psychology and Primitive Culture.
Common Origins.—The next group of analogies is formed by cases which may be reduced to common origin. In addition to what has already been said on the subject in connection with the literature of the historical school, we must point out that in the case of kindred peoples this form of derivation has, of course, to be primarily considered. Inferences in the direction of common origin become more doubtful when we argue, not that certain facts proceed from a common stock of notions embodied in the early culture of a race before it was broken up into several branches, but that they have to be accounted for as instances of a similar treatment of legal problems by different peoples of the same ethnic family. The only thing that can be said in such a case is that, methodically, the customs of kindred nations have the first claim to comparison. But it is by no means useless for the investigator of these problems to inform himself about the aspect of such customs in the life of nations of other descent, and especially of the simpler peoples.
Consecutive Stages.—Organizing thought always seeks to sub stitute order for chaotic variety. Observations as to disconnected analogies lead to attempts to systematize them from some com prehensive point of view. These attempts may take the shape of a theory of consecutive stages of development. Similar facts appear over and over again in ethnological and antiquarian evi dence, because all peoples and tribes, no matter what their race and geographical position, go through the same series of social arrangements. This is the fundamental idea which directed the researches of Maine, McLennan, Morgan, Post, Kohler, although each of these scholars formulated his sequence of stages in a peculiar way. McLennan, for instance, puts the idea referred to in the following words : In short, it is suggested to us, that the history of human society is that of a development following very slowly one general Jaw, and that the variety of forms of life—of domestic and civil institution —is ascribable mainly to the unequal development of the different sections of mankind. . . . The first thing to be done is to inform ourselves of the facts relating to the least developed races. To begin with them is to begin with history at the farthest-back point of time to which, except by argument and inference, we can reach. Their condition, as it may to-day be observed, is truly the most ancient condition of man (Studies in Ancient History, 2nd series, 9, 15).