“…But it is certainly correct that the early anthropologists were seldom Darwinians in the strict sense. Nor is this altogether surprising, since the study of primitive society was not generally regarded as a branch of natural history. Rather it (anthropology) was treated initially as a branch of legal studies. Many of the key authors were lawyers, including Bachofen, Kcihler, Maine, Mclennan and Morgan. The issues, which they investigated – the development of marriage, the family, private property and the state - were conceived of as legal questions. The initial source-the common case-study-was provided by Roman law.” (Adam Kuper 1988)
However, background studies on Morgan and his contradicting activities, which cultural anthropologists should have recognized and acted upon as legitimate, reasonable and prudent functions of their investigative studies, were never conducted. However, Morgan’s personal, legal, business and political papers may have been destroyed before anyone could cross-reference them with his 'scientific' kinship research. However, destruction does not always mean lost, future investigations will have to be reverse engineered from the potential beneficiaries.
Comparative law: From Wikipedia, the free encyclopedia
The modern founding figure of comparative and anthropological jurisprudence was Sir Henry Maine, a British jurist and legal historian. In his 1861 work Ancient Law: Its Connection with the Early History of Society, and Its Relation to Modern Ideas, he set out his views on the development of legal institutions in primitive societies and engaged in a comparative discussion of Eastern and Western legal traditions. This work placed comparative law in it's historical context and was widely read and influential.
The fact that such an investigation never occurred illustrates how the opportunity to identify Morgan’s differentiation between verbal and tangible actions escaped Tooker, Kuper, Moses and others:
“Neither can it be said that Morgan’s fieldwork benefited much from his activities on the behalf of the Tonawanda Seneca. His efforts on their behalf in their fight with the Ogden Land Company proved unsuccessful, and after 1846 he took no part in the efforts to save this reservation, a task that was not accomplished until 1857.”… (Tooker 1984)
Tooker either fails to recognize, or does not know, that 1846 was the year the Attorney General of the United States published his criteria for evicting Indians from their land. That 1857 was the year the United States Supreme Court, in Fellows vs. Blacksmith, stipulated-in-dicta that only the government has the right to evict Indians from their land; and that right did not extend outside of the government to states, businesses or individuals ( Morgan's clients ), a legal position which actually benefited the railroads and mining interest, by preventing competing industries from engaging in Indian evictions.
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