Common Law, Mountain Music, and the Construction of Community Identity

Publication Date01 Sep 2010
AuthorDavid Jenkins
SLS360435 351..370

Social & Legal Studies
19(3) 351–369
Common Law, Mountain
ª The Author(s) 2010
Reprints and permission:
Music, and the
DOI: 10.1177/0964663909360435
Construction of
Community Identity
David Jenkins
University of Copenhagen, Denmark
This article suggests how law and the arts can shape a community’s identity over time, by
exploring the unique parallels between the common law and the folk music of the
Appalachian region of the United States – two cultural transplants from the British
Isles to the early American frontier. Both preserve a backward-looking, cultural memory
at the same time as they accommodate gradual changes in social conditions. Thus, this
comparison argues that these essentially unwritten legal and musical traditions similarly
transcend geographical and temporal distances, reflect and influence normative attitudes,
and rely upon relatively open communicative processes in transmitting their core infor-
mation. As living traditions, then, the common law and Appalachian folk music open small
but important spaces for pluralistic discourse, where social conflicts can be reconciled
over time and new identities forged from old ones.
common law, folk culture, identity, legal tradition, music, pluralism
As this article is about the importance of story-telling, it begins with a tale. In 1769, a
man by the name of John Finley led an expedition across the Cumberland Gap, a pass
through the rugged southern Appalachian Mountains that connected the southwestern
reach of the Virginia colony with the choice land of Kentucky on the western side. Finley
was a backwoodsman of Scotch-Irish stock, his near ancestors being Scotch Presbyter-
ians from the Ulster plantations, and he was well-known and well-traveled along the
frontier. Not only had he traded with the Native Americans, he had also been with
General Braddock’s army in the wilderness during the French and Indian War. While
with Braddock, Finley met and struck up a friendship with another frontiersman, Daniel

Social & Legal Studies 19(3)
Boone. At some point, Finley told Boone tales about the ‘dark and bloody ground’ of
Kentucky that lay across the mountains – fertile, rich in game, and coveted by the
Shawnee, Cherokee, and other tribes as a hunting ground (Bakeless, 1965: 21–2, 45).
Finley’s stories piqued Boone’s interest in crossing the mountains and, gathering a few
other intrepid souls, they set out for Kentucky in the spring of ‘69. The group made it
through the mountains by way of the Gap, and Boone was well pleased with the blue-
grass lands they found beyond (Clark, 1993: 4). In subsequent years, Boone would blaze
a trail through the Gap to lead settlers into the Kentucky country (Billington, 1967:
169–73). The rest of the story is that, according to oral family tradition, John Finley is
an ancestor of mine on my maternal grandmother’s side – Finleys from the southwestern
Virginia highlands.
This little tale is not just an anecdote of personal genealogy or colorful local history: it
is a starting point, or a crossroads, where the common law and traditional music met to
hold together a new immigrant community and create a distinct American regional cul-
ture. As a consequence of that 1769 expedition and the subsequent westward migrations
through the Gap, Kentucky joined the Union as the fifteenth state in 1792. Today, federal
law designates the Cumberland Gap as a national historical park, recognizing it as an
important part of American national heritage.1 Thus, the law has been one means to pre-
serve the Gap and tell its story for present and future generations. Music is another. At
the vanguard of early western migrations, Scotch-Irish settlers – like the Finleys – put a
strong cultural stamp on the Appalachian settlements not only in eastern Kentucky, but
what is now West Virginia, western Virginia, southern Ohio, eastern Tennessee, and
western North Carolina (Leyburn, 1989: 232–3, 318–19). With them went their musical
traditions from the British Isles. In time, folk memory of the Gap was preserved in a tune
called, simply enough, ‘Cumberland Gap’. One line encourages, ‘Grab ol’ Granny an’
Granpap, we’re all a-goin’ to the Cumberland Gap!’ So they went, taking along not only
grandma and grandpa, but the culture inherited from the old country. And like my family
history and the law that recognizes the heritage of the Gap, this folk song tells a story
about where people have been and where they are going. As it unfolds, this article in turn
will tell how law, music, and one’s own identity within a community are all closely
Of course, many forms of music or other arts can have a role, like law, in shaping val-
ues and forming identities. But while my focus here on Appalachian traditional music is
admittedly a subjective one, it is by no means arbitrary. I partly justify this unusual com-
parison from the special role that oral, folk traditions play in the fabric of many old, rural
societies. Just as importantly, however, it was personal experiences that ‘got me to thin-
kin’’ about the deep connections between a community’s sense of self, and its legal and
musical traditions. As my opening story relates, I have strong family ties to Appalachia,
where I was born and raised along the Ohio River Valley. Although self-taught and
rather poor, I’m also a bit of a fiddler and banjo-picker, like great-grandpa Finley, and
the old-time music continues to take me back home, from which I emigrated many years
ago. Being a common-lawyer on top of all this, I have long noticed that there is
something fascinating in how even today informal customs and unwritten folkways
imperceptibly shape Appalachian attitudes and codes of behavior, sometimes quaintly
old-fashioned and seemingly at odds with the outside world. Indeed, I have sometimes

felt more culturally in common with acquaintances from maritime Canada and Scotland,
than with the city-dwellers of the eastern and western U.S. seaboards. As I have often
said, anyplace where they play a good fiddle can’t be all bad.
So despite any concerns that its subject-matter might be unusually narrow, this short
article aims to be either a point of departure or a way station for others wanting to explore
similar connections between the law, arts, other forms of media, and identity formation.
Having lived in Canada and Scotland for many years, I also hope that this discussion and
its stories will resonate with many readers outside of the United States. After all, it’s
from the old country that the Finleys, their music, and their laws first came before taking
to the rough American backcountry. One can also argue that the old cultural and legal
traditions of Britain and its former American colonies still help to maintain a palpable
trans-Atlantic community. And indeed, it’s back to Britain that we must now look to
begin our understanding of the special links between the common law, traditional music,
and one unique American community’s identity.
Time, Memory, and Message
The people who crossed the Appalachian Mountains carried cultural baggage that
included ways of speech, family life, and folk art that would shape the social landscape
of the region. And while settlers in the American backcountry represented an ethnic mix,
a great number came from ancestry that was Ulster Scotch-Irish, or otherwise from
Scotland and its neighboring English borderland (Fischer, 1989: 618, 634–5, 639; Ley-
burn, 1989: 232–3, 318–19). With them came their distinct musical and legal traditions,
both of which reinforced (or reconstructed) their cultural identity and norms of behavior.
Music, in particular, offered poignant ways for these people to bridge the distance from
their new homes to back east across the mountains, and even across the sea to the British
Isles. Songs of immigration, like ‘Cumberland Gap’ or ‘Pretty Saro’, express mixed
emotions about leaving homes and loved ones behind or finding a hopeful future.2 With
or without words, this music was therefore intimately connected to the community’s self-
image and history. As Gerald Milnes (1999: 6) has described it:
Old-time fiddle music isn’t fiction. It represents real emotions long held by the people and
culture from which it originated [ . . . ] Instead [the music] developed through a process
whereby human experiences materialize as sound created on musical instruments in many
capable hands. The oldest fiddle music in West Virginia and other regions captures a dis-
position of people, or representation of time, and a portrayal of place.
Some ‘spooky-’ or ‘crooked-’ sounding Appalachian fiddle tunes continue to use ato-
nal modal scales, once common in Scottish and Irish music until displaced in modern
times by more tonal ionic ones. ‘Bonaparte’s Retreat’, a rousing fiddle favorite, remark-
ably imitates the sound of the bagpipes, an instrument remembered but not carried to the
American frontier. Lyrics are ‘especially closely tied to the culture and . . . are the most
accurate expressions of its nature and character’ (Nettl, 1962: 8), and most explicitly
betray the Old-World origins of Appalachian folk culture. ‘Lord Lovel’ tells of the tragic
love affair of a Scottish nobleman and ‘The Lady of Carlisle’ about a woman’s courtship

Social & Legal Studies 19(3)
along the Scottish-English borderlands. Songs like ‘The House Carpenter’ or ‘Goin’
across the Sea’ have nautical references, obviously not originating from the inland back-
country but surviving from a...

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