James Fenimore Cooper / American Men of Letters

by Thomas Raynesford Lounsbury

Cooper entered upon the account of the battle of Lake Erie with the common prejudice against Elliott. Nor were efforts lacking to keep it alive and strengthen it, when it was reported in naval circles that he had begun to be uncertain about the justice of his original impressions. Captain Matthew Perry, the brother of the Commodore, forwarded him all the sworn documentary evidence that made against Elliott. He neglected to send any that was given in his favor. Cooper was not the man to be satisfied with this way of writing history. As he examined the subject more and more, he was struck by the conflicting character of the testimony, and the doubt that overhung the whole question. He came finally to the conclusion that it was not a matter he could settle, or, perhaps, any one. He accordingly contented himself with giving as accurate an account of the battle of Lake Erie as he could without entering at all into the details of the controversy. He made not the slightest effort to detract from the praise due to Perry, and, indeed, paid the highest tribute to his skill and conduct. Nor did he give to Elliott any prominence whatever.

He had committed, however, the unpardonable sin. He had refused to attack Elliott. He had preferred to accept Perry's original account of the battle, written within five days after it had taken place, to the view he took of it not only five years later, but also after a bitter personal quarrel had sprung up between him and his former second in command. While Cooper had made no special mention of the latter, he had spoken of him respectfully. There was a general feeling that Elliott ought to have been attacked. He was a very unpopular man, and, perhaps, deservedly so; while Perry was both a popular favorite and a popular hero. The refusal of Cooper to join in the general denunciation brought down upon him, not only those who honestly believed him in the wrong, but the whole horde of his own personal enemies who knew little and cared less about this particular subject. In the long list of controversies which the student of literature is under the necessity of examining, none seems so uncalled for and so discreditable to the assailants as this. For it is to be borne in mind that the historian had not made the slightest attempt to injure Perry in the popular estimation, or to elevate the subordinate at the expense of the commander. Yet assertions of this kind were constantly bandied about, though it would not have taken five minutes reading of the work to have shown their falsity. Cooper was frequently spoken of by the press as the detractor of American fame and the slanderer of American character, because he refused to say, on one-sided evidence, that an officer of the United States navy had been willing to sacrifice his superior in a hotly contested battle and imperil the result for the sake of ministering to his own personal ambition, or of gratifying a feeling of personal dislike and envy, of the existence of which at the time there was no proof.

Space here exists to notice only the elaborate attacks to which Cooper himself felt constrained to reply. The first of these appeared in four numbers of the "New York Commercial Advertiser" during June, 1839. The articles were written by William A. Duer, who had lately been president of Columbia College. They purported to be a review of the "Naval History," but nothing whatever was said about that work beyond the few pages in which the battle of Lake Erie is described. They were, moreover, so personal in their nature and contained imputations so gross on his character, that Cooper began a libel suit against the journal in which they were published. This finally resulted in one of the most extraordinary trials that has ever been recorded in merely literary annals. The attack in the "Commercial Advertiser" was followed by a similar one in the "North American Review." This was written, however, with more decency, though it again devoted itself mainly to the battle of Lake Erie. It was the work of Alexander Slidell Mackenzie, a naval author, who by three books of travel had gained at the time some literary notoriety. But the notoriety never rose to reputation; and the history which preserves his name at all, preserves it in connection with an event it were well for his memory to have eternally forgotten. It is to be added that he was the brother-in-law of Captain Matthew Perry, and that Duer was his uncle. Hardly had his broadside been delivered, when another attack appeared. The victor of Lake Erie had come from Rhode Island, and Rhode Island rushed to the fray, not to defend her son--for he had not been attacked--but to build up his reputation by ruining that of his enemy. Tristam Burges, when the biography of Elliott, already referred to, had appeared, had delivered a lecture on the battle of Lake Erie before the Rhode Island Historical Society. It was not printed at the time; but no sooner was Cooper's work published than, at the request of Perry's friends and relatives, it was brought out with documents appended. The lecture reads very much like a stump speech of the extreme florid type. It is needless to say that in it Elliott got his full deserts for betraying his commander. It made no direct reference to Cooper, but the whole object was to discredit the account of the battle which he had given.

Even this was not all. Mackenzie prepared a life of Perry, which was published early in 1841. In it he attacked Elliott with great bitterness, and was careful to give in an appendix all the sworn testimony on one side, and leave out all the sworn testimony on the other. The biography met with general favor. It was styled a noble work, and the courage manifested by the author in assailing an unpopular man and celebrating a popular hero was, for some reason hard now to be understood, highly commended on all sides. The intense partisanship of the biography can be read on almost every page. But it was warmly welcomed everywhere, for Elliott had few friends even in his own profession. The "North American Review" for July, 1841, in an article written by the late Admiral Charles H. Davis, congratulated the navy on now having a work which gave a true and faithful report of the battle of Lake Erie, and stigmatized Cooper's account as false in spirit, statement, and comment.

This was, indeed, the general charge. For a while Cooper was under as heavy a bombardment as Perry himself had been in his flagship. That his feelings were outraged by the injustice of it there can be no question, but it never daunted his spirit. Yet he took not the slightest step without being sure of his ground. He went over the evidence again and again. He talked with officers of the navy who held views opposed to his own; though he said afterward he rarely found that they knew anything about the matter beyond common report. With the exception of a few newspaper articles, however, he published nothing directly in reply until four years after his history was published. In the mean while he pressed the suit against William L. Stone, the editor of the "Commercial Advertiser." That paper at first took the prosecution in the jocular and insolent way then common with the press. Under an announcement of "Stand Clear," it informed its readers early in August, 1839, that "the interesting Mr. J. Effingham Fenimore Cooper is to bring a libel suit against us. None will approach it in interest, importance, or amusement." The editor was telling more truth than he thought. No action, however, was taken by Cooper for nearly a year to carry out his expressed intention. But he could always be depended upon. His suits, though sometimes long in coming, were sure to come at last. Great was the surprise of the editor when, in May, 1840, a process was served upon him for a libel printed eleven months before. He was indignant that the prosecutor had waited so long. A demurrer was filed and argued in July, 1840, at the Utica term of the Supreme Court. The decision was against the defendant. Things now began to look more serious; for while the importance of the suit was increasing, its amusement was diminishing. It, however, hung on in the courts for a year and a half longer. The defendant was naturally unwilling to hasten a trial which was almost certain to end in an adverse verdict. Negotiations between the parties in the autumn of 1841 resulted in a novel agreement. Cooper did not care for damages. It was not money he sought; it was to vindicate the truth of his history and his character as an historian. When, therefore, his adversary suggested that an ordinary jury of twelve men could not well pass upon a question involving the value of conflicting evidence, and minute technical detail, he seized upon the occasion to arrange that it should be tried before a body of referees, consisting of three distinguished lawyers. The proposal was accepted. Never was the eternal question between author and reviewer settled in a more singular and a more thorough way. For the referees were to decide, not merely upon legal points, but upon moral ones. They were to decide whether the author had written a truthful account of the battle of Lake Erie, and whether he had written it in a spirit of truth. On the other hand, they were to decide whether the reviewer had written matter libelous enough to justify a verdict from a jury, and whether in the treatment of the subject for which he criticised the history he had been just and impartial. If the decision were in favor of the author the defendant was not to pay more than two hundred and fifty dollars besides the costs. In any case the beaten party was to publish the full text of the decision, at his own expense, in the cities of New York, Albany, and Washington. The referees agreed upon were Samuel Steevens, named by Cooper; Daniel Lord, Jr., named by Stone; and Samuel A. Foot, chosen by mutual consent. The attendance of many witnesses was rendered unnecessary by the stipulation that a vast mass of documentary testimony in possession of Cooper should be taken in evidence.

The referees met in the United States court room in New York city, on the afternoon of Monday, May 16, 1842. A large crowd was in attendance. Public interest had been aroused, not only by the question involved and the novel character of the suit, but by the fact that the historian was to assume the principal conduct of his own side. The trial lasted for five days. After the opening speeches had been made, the taking of oral testimony began. Among the witnesses for the defense were Sands, Mackenzie, and Paulding, all officers of the navy. They were examined in reference to Cooper's account of the battle of Lake Erie and the diagrams by which he represented the positions of the vessels during the engagement. Their views were in all respects opposed to the theory of operations which he had assumed. After the taking of the oral testimony was ended and certain legal questions had been argued, the summing up was begun by William W. Campbell of Otsego, the leading lawyer for the defense. His speech was exceedingly able and effective. Men who were present at the proceedings asserted, when it was finished, that there was no possible way in which its reasoning could be shaken, still less overthrown. At eight o'clock on Thursday evening Cooper began summing up for the prosecution, and continued until ten. On Friday he resumed his argument at four in the afternoon, and six hours had passed before he concluded. His conduct of the case from the beginning had excited surprise and admiration. Friends and foes alike bore witness to the signal ability he had displayed throughout; but his closing speech made an especially profound impression. Its interest, its ingenuity, and its effectiveness were conceded by the defendant himself. It was for a long time after spoken of as one of the finest forensic displays that had ever been witnessed at the New York bar. Among those present at the trial was Henry T. Tuckerman, who has left us an account of the circumstances and of the bearing of the man. "A more unpopular cause," he wrote, "never fell to the lot of a practiced advocate; for the hero of Lake Erie was and had long been one of the most cherished of American victors. We could not but admire the self-possession, coolness, and vigor with which the author, on this occasion, played the lawyer. Almost alone in his opinion,--the tide of public sentiment against his theory of the battle, and the popular sympathy wholly with the received traditions of that memorable day,--he stood collected, dignified, uncompromising; examined witnesses, quoted authorities, argued nautical and naval precedents with a force and a facility which would have done credit to an experienced barrister. On the one hand, his speech was a remarkable exhibition of self-esteem, and on the other, a most interesting professional argument; for when he described the battle, and illustrated his views by diagrams, it was like a chapter in one of his own sea-stories, so minute, graphic, and spirited was the picture he drew. The dogmatism was more than compensated for by the picturesqueness of the scene; his self-complacency was exceeded by his wonderful ability. He quoted Cooper's 'Naval History' as if it were 'Blackstone;' he indulged in reminiscences; he made digressions and told anecdotes; he spoke of the manœuvres of the vessels, of the shifting of the wind, of the course of the fight, like one whose life had been passed on the quarter-deck. No greater evidence of self-reliance, of indifference to the opinion of the world, and to that of his countrymen in particular, of the rarest descriptive talent, of pertinacity, loyalty to personal conviction, and a manly, firm, yet not unkindly spirit, could be imagined than the position thus assumed, and the manner in which he met the exigency. As we gazed and listened, we understood clearly why, as a man, Cooper had been viewed from such extremes of prejudice and partiality; we recognized at once the generosity and courage, and the willfulness and pride of his character: but the effect was to inspire a respect for the man, such as authors whose errors are moral weaknesses never excite."

On the 16th of June the referees rendered their decision on the eight points submitted to them for adjudication. In regard to five of these they were all in full agreement; but in three instances one of the referees dissented from certain portions of the report made by the other two.

The first point was whether, according to the evidence and the rules of the law the plaintiff would be entitled to the verdict of a jury in an ordinary suit for libel. They agreed that he would, and accordingly awarded the damages that had been fixed by the original stipulation.

The second point was whether in writing his account of the battle of Lake Erie, Cooper had faithfully fulfilled his obligations as an historian. The majority of the referees decided that he had so done. Mr. Foot dissented to this extent, that Cooper had intended to do so, but that from error of judgment or from some cause not impugning the purity of his motives, he had failed in one specified point. This was that the narrative gave the impression that Elliott's conduct in the battle had met with universal approbation, which it had not. The arbitrator added, however, that this was the only particular in which it appeared to him that the historian had failed in fulfilling the high trust he had taken upon himself.

The third point was whether the narrative of the battle of Lake Erie was true or not in its essential facts, and if untrue, in what particulars. The majority decided that it was true. Mr. Foot dissented on the same point, to the same extent, and for the same reason, for which he had dissented from the second.