¹ System des heutigen römischen Rechts (1840), I, § 7.

² Principien der Sprachgeschichte (1886), ch. i.

³ J. Donovan, Mind, vol. VI, pp. 498-506.

⁴ See pp. 432-442. See also his earlier Progress in Language (1894).

⁵ Professor Jespersen is right, I think, in detaching primitive musical utterance from inevitable association with the dance. Edward Sapir (Language, 1921, p. 244) repeats—rather unthinkingly, I believe—the old view that “Poetry is everywhere inseparable in its origins from the singing voice and the measure of the dance.” Poetry and song are inseparable in origins; but primitive musical utterance appears (like the songs of birds or of children) independent of the dance, as well as associated with it, as far down in the cultural scale as we can go.

⁶ Following the American ethnologist Hale, “The Origin of Language,” in Transactions of the American Association for the Advancement of Science, vol. xxxv, 1886, etc. See Jespersen's Language, p. 181.

⁷ A parallel shift of theory may be seen in the fields of economics, anthropology, and sociology. For example, a belief prevailed, as advocated by Sir Henry Maine, E. de Laveleye, and other scholars, that the existing institution of private property is a direct descendant of a system of communal ownership-much as Professor Gummere thought individual authorship and ownership of song to be the direct descendant of communal authorship and ownership. A late reflection of Maine's view may be found in The Evolution of Revolution, by H. M. Hyndman (1921), who writes at the opening of his first chapter (“Primitive Communism”): “All authorities are agreed that, throughout the earlier development of mankind, communism, without any private property whatever in the means of creating wealth, prevailed as an economic and social order”…“Private ownership in any shape which gave its possessor economic or social power over his fellows, was unknown.” Hyndman speaks in his introduction of “the most crucial revolution in the story of human growth”…“This revolution was the transformation from collective or communal property held by a portion of a tribe or gens, by the tribe itself, and ultimately by a confederation of tribes, into private property held by the individual and his family.”

Some recent studies of the subject of primitive ownership appear to show-that the communistic theory is mythical, not only for private property but for the ownership of land. Completer investigation makes clear that individualistic ownership both preceded and followed common control and ownership. This is the thesis of Jan St. Lewinski (The Origin of Property, Lectures delivered at the London School of Economics, 1913) who maintains that individual ownership was always the first form of property…“from a state of no property, individual ownership generally originates once labor has been incorporated in the soil” (p. 22). Pure nomads and hunting peoples have no private property in land, but land is not common property among them. It is merely a free good, to appropriate which is not worth the trouble. The evidence of existing primitive peoples, says Lewinski, shows clearly that the village community was not the primitive stage but was preceded by individual appropriation. “Thus the principal pillars of the communistic theory are already demolished!” he writes (p. 30). Private property in personal effects, like clothes, weapons, domestic animals (in songs, also, it might be added) prevails everywhere, it appears, even among the peoples lowest in the cultural scale, and it has probably existed from time immemorial. For a recent American book, taking the same position as Lewinski's, see Robert H. Lowie, Primitive Society (1920), chapter IX.

⁸ “Yet when we come to realize what we mean by saying a custom, a tale, a myth, arose from the Folk, I fear we must come to the conclusion that the said Folk is a fraud, a delusion, a myth…The Folk is a name for our ignorance.” Folk Lore, iv, 234, June, 1893.

⁹ F. B. Gummere, “The Ballad and Communal Poetry,” Harvard Studies and Notes in Philology and Literature, V, 55.

¹⁰ Old English Ballads, p. xxxvi. For a recent German view, taking the contrary position concerning the genesis of folk-song, see Alfred Götze, Vom Deutschen Volkslied, 1921.

¹¹ The argument from universal consent (consensus omnium gentium) is formulated by Aristotle at the very beginning of the Topics (i, 1): “As for probable truths, they are such as are admitted by all men, or by the generality of men, or by wise men; and among these last either by all the wise, or by the generality of the wise, or by such of the wise as are of the highest authority.” The argument, however, was especially adopted by the Stoics, whose literature it pervades, and given Latin form by such Stoic writers as Cicero (cf. De Natura Deorum, i. 17; ii. 2); and Tusculanae Disputationes i. 15: (“quod si omnium consensus vox naturae est”) and Seneca. Bacon, with the example of excessive deference to the authority of Aristotle before him, remarks: “Verus enim consensus is est, qui ex libertate judicii in idem conveniente consistit” (Instauratio Magno, Pars II, Liber i, Aph. lxxvii). As used in criticism, the evidence of the consensus of trained minds is regarded as especially valid as the natural answer to the mediaeval maxim, de gustibus et coloribus non est disputandum; and it is, in fact, the bulwark of any theory of sound criticism in art and letters. Here again the foundation of the idea is in Aristotle,—both in the Politics and the Poetics, especially Chapter XXVI of the latter work, where he defines the higher art as in every case that which appeals to the better auditor, or the cultivated spectator (); see, also, Butcher, Aristotle's Theory of Poetry and Fine Art, Ch. IV). But the locus classicus of the idea, in this critical sense, is without doubt Longinus, De Sublimitate vii, where he defines the true test of elevation in letters as the judgment of a man of intelligence, versed in letters: ‘true beauty and sublimity please always and please all.‘ Compare also Courthope, Life in Poetry, Law in Taste, I. Of course, in all this the judicial rather than the creative mind is in regard; but can there be any valuable creation without selective judgment? Can art, in other words, begin without at least the impulse of conscious intention, as the mob-soul theories imply that it does? Perhaps if the phrase “work of art” were refocussed in critical thought, with right emphasis upon the work, we should have less vogue of sociological puerilities and more respect for the classics of critical theory.

¹² In the first version of the Contrat Social (Livre I, Chapitre II) Rousseau says: “que la volonté générale soit dans chaque individu un acte pur de l'entendement qui raisonne dans le silence des passions sur que l'homme peut exiger de son semblable, et sur ce que son semblable en droit d'exiger de lui, nul n'en disconviendra.” In view of the fact that to no light degree upon Rousseau has been fathered the whole chute of modern thought which has ended in the mire of sociological mysticism, it is of no small interest to note how painstakingly intellectualistic Rousseau intended to be. No doubt his “moi commun” is in part at least the hapless progenitor of our modern Volksgeister, communal selves, and mob souls; but when (De l'économie politique) he employed the analogy of an animal body to define the functions of the body politic, and likened the life of the whole to a “moi commun,” he was actually on classical ground and employing a Platonic figure. It is worth while, however, to point to a very interesting alteration of phraseology between the first draft and the final form of the key passage to the Contrat Social which of itself appears to indicate that Rousseau half feared the very misinterpretation which his phrase has been given. He defines the terms of the theoretical contract: “Chacun de nous met en commun sa volonté, ses biens, sa force, at sa personne, sous la direction de la volonté générale, et nous recevons tous en corps chaque membre comme partie inaliénable du tout.” He then, in the first form, continues: “A l'instant, au lieu de la personne particulière de chaque contractant, cet acte d'association produit un corps moral et collectif, compose d'autant de membres que l'assemblée a de voix, et auquel le moi commun donne l'unité formelle, la vie et la volonté.” In the final version the last phrase is altered to “lequel [corps moral et collectif] reçoit de ce même acte son unité, son moi commun, sa vie et sa volonté.” The subordination of the “moi commun” is obviously the intention of the change. Of course Rousseau never dreamed of the “over-individual ego” or of the “blind will” of a psychic underworld which were later to miscolor critical judgment.

¹³ I am indebted for assistance in my examination of material from the fields of law, sociology, and philosophy to my brother, Dean Roscoe Pound of the Harvard Law School, to J. E. Le Rossignol, Professor of Economics at the University of Nebraska, and especially to H. B. Alexander, Professor of Philosophy at the University of Nebraska.

¹⁴ The word communal is as old as the Song of Roland (tuit en sunt communel, in the sense of tous y prennent part, 1. 475, cited by Littré). Later it usually denotes what has to do with a commune. As a critical term in English it belongs to the nineteenth century. Impetus was given to commune after the title was assumed by Parisian political desperadoes during the Reign of Terror. The word communal entered English through French influence, early in the century, in the sense of pertaining to a commune. By the middle of the century it was in use in the sense of pertaining to a community.

¹⁵ Behind his employment of “communal” lay Gierman influence. He wished to make for English a distinction similar to that afforded by Franz Böhme's volkslieder and volksthümliche lieder (Liederbuch, 1877). Gummere's “communal mind” suggests Wundt's volksseele, or his gesammtgeist. He may also have had in mind Steinthal's dichtender volksgeist, or Lachmann's gemeinsames dichten. He comments on these terms at some length in the introduction to his Old English Ballads, and in “The Ballad and Communal Poetry,” in the Child Memorial volume of Harvard Studies and Notes in Philology and Literature. Otto Immisch (Die innere Entwickelung des griechischen Epos; 1904) coins the name Gemeinschaftsdichtung.

¹⁶ Old English Ballads, p. xxvii.

¹⁷ Old English Ballads, p. lxxxvii.

¹⁸ The best instance of communal composition among the Indians which I can cite is the following, which was recently brought to my attention. The paragraph is from Frances Densmore's “Northern Ute Music” (1922) p. 26, a volume issued as Bulletin 76 of the Publications of the American Bureau of Ethnology.

Composition of Songs.—It was said by several singers that they “heard a song in their sleep,” sang it, and either awoke to find themselves singing it aloud or remembered it and were able to sing it. No information was obtained on any other method of producing songs. In this connection the writer desires to record an observation on musical composition among the Sioux. A song was sung at a gathering and she remarked: “That is different from any Sioux song I have ever heard, it has so many peculiarities.” The interpreter replied, “That song was composed recently by several men working together. Each man suggested something and they put it all together in the song.” This is the only instance of cooperation in the composition of an Indian song that has been observed, adds Miss Densmore.

¹⁹ Evidence supporting this and the following generalizations has been presented by me in various articles published in the Publications of the Modem Language Association, Modern Language Notes, etc.

²⁰ The extent to which old airs are preserved is quite astonishing. Many of our current hymns and popular songs are set to century-old melodies—originally made for songs of quite another character.

²¹ See Olive Dame Campbell and Cecil J. Sharp, English Folk Songs from the Southern Appalachians, 1917.

A critic who has recently reaffirmed belief in the emergence of the English and Scottish ballad type from the unschooled peasantry is Professor G. H. Gerould, Mod. Philol. xxi, August, 1923.

²² The orthodox contemporary American conception of the spontaneous, gregarious composition of the English and Scottish traditional ballads, on social occasions, may be illustrated by the familiar picture (Introd. to the Cambridge edition of the English and Scottish Ballads, 1904) of a plausible method of composition of “The Hangman's Tree,” or of some remote ancestor of it, by a homogeneous group; or, to go to a more recent book, by the picture of the composition of “Sir Patrick Spens” in Greenlaw, Elson, and Keck's Literature and Life, Book I, p. 237 (1922) :

“ …. imagine that you are one of a group of people who have been powerfully moved by the tragic fate of Sir Patrick. You knew him or some of his men. In this group the tragedy is being discussed. One man says he heard that Sir Patrick suspected the hand of an enemy, but that he was too brave to draw back even though he knew that the voyage meant death. Another says that an old sailor observed portents and omens and promised a tragic outcome. A third adds that such omens ought never to be disregarded. Others wonder how the wives and sweethearts of the dead sailors felt when they heard the news, and they speak of the unutterable sadness of their waiting at home, for tidings. And at last some one speaks of the dead men themselves, lying down there fifty fathoms under the sea, their dead eyes open, their bodies gently rolling from side to side with the motion of the water, or too far below the surface ever to move. You see you have, in reality, a succession of broken bits of talk, expressions of mood, not a story told in an orderly way or written up for the newspaper. One member of the group and then another adds his bit. There are moments of silence between. All are thinking of the horror, and deeply moved. Then perhaps one, or two, or three, begin to put the thing into words. The words fit some simple song that everyone knows. The group begins to sing the song. The ballad is born.

Thus the ballad seems not to be a story at all but just the expression of the feelings of a whole group of people. It differs from the story in that it seems to tell itself. It is not the work of an author who gives to the events an interpretation or who carefully chooses details so that a definite impression is built up in the mind of the reader. It expresses the reactions of a group. It is impersonal. It is a tale telling itself.“

There is a conspicuous lack of evidence for the typical composition of ballads in such a way, anywhere, or at any time, even among primitive peoples; and it it is difficult to show that it is a method of composition that is psychologically plausible. Yet nearly all the available ballad anthologies for schools (see W. D. Armes, xxxviii ff.; Neilson and Witham, xv and footnote; G. H. Stempel, xxvii ff., etc.) paint for their readers this manner of composition for the English and Scottish ballads.

²³ See W. M. Hart, “Professor Child and the Ballad,” P. M. L. A. XXI (1906), 770, 805, etc.

²⁴ Old English Ballads, p. xxvii. A recent critic who reaffirms belief in the homogeneous throng and communal origins is Professor H. S. V. Jones, Journal of English and Germanic Philology, vol. xxii, January, 1923.

²⁵ Here, and not under the classification “ballads,” belongs the “Hinkie Dinkie” of Mr. Atcheson L. Hench (“Communal Composition of Ballads in the A. E. F.,” Journal of American Folk-Lore, vol. 34, p. 386).

²⁶ Johnson's Cyclopaedia, article “Ballads.”