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Originally published in James Fenimore Cooper Society Miscellaneous Papers No. 29, May, 2012, pp. 13-16
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Lawrence Buell includes The Pioneers under the general term of the texts which deserve to be called "environmental" because they display "some sense of the environment as a process rather than as a constant or a given." According to Buell, the notion of "process" is inscribed not only in The Pioneers's seasonal structure, but also in "the community's development from wilderness to town" (8). This last notion once again highlights the clash between Natty and Marmaduke Temple and their dissension on the justice of Temple's legal system. The dissension is a major sub-plot of The Pioneers and, as Rans observes, "no serious criticism of this novel has ignored the legal issues, and in particular the confrontation at law of Temple and Natty."1
Buell's perspective adds an additional dimension to the issue of the law, since change derives in Templeton from the pioneers' pressure on the wildlife, and pressure creates a need to curb their destructiveness.2 The need to impose environmental regulations is particularly felt by Temple in his dual characterization as landowner (steward of the patent) and judge. In the transition from English to American rule, however, conservation laws are developed out of those brought to America from the older world.3 The Pioneers works on this line between old and new, highlighting issues of power and property. As is well known, a crucial passage in the book is the indictment of Natty—of all possible offenders—for killing a deer out of season. In the face of an obviously distorted outcome of conservationism, scholars have questioned Temple's self-assigned mission of social and environmental stewardship, claiming that stewardship conceals a will to subtract wildlife from the control of the state.4
I am not sure where Cooper stands in the matter. There are angles, however, to the uses of the law in The Pioneers that are usefully investigated from the point of view of protection and game laws. In particular, I want to look at what game laws are called to task in the trial and indictment of Natty—and how. In the discussion, I will use the term "forest," rather than the term "woods" used by Cooper. I use "forest" basically for two reasons: first, in The Pioneers the forest is not a mere object of observation, but an active part of the story. Second, "forest" evokes the English preserves with their game laws, most of which were aimed at the preservation of the deer. In the transition from old to new order, I will suggest, The Pioneers does not erase the memory of the king's forests, but creates a space in which to move back and forth between old and new, natural and historic, real and imaginary forests. The novel's enhanced hesitation between old and new, and real and imaginary, generates Natty's questioning of the "bundle of powers" that define access to, and uses of, the forest. In his resistance, Natty appeals to the forest law as he knows it and claims different powers of access than the English, in a confrontation which moves progressively from the forest, to his own hut, and back from his hut to individual freedom in America.5
Before moving on, it must be underlined that the king's forests were aimed at preserving the deer, but comprised human and non-human life and activities. Thompson summarizes the issue as follows:
To the uncultivated eye a forest appears simply as uncultivated land—an expanse of woodland and heath which has been left "wild," and in which wild animals, including deer, may run at will. But a forest has its own complex economy; and where forest settlements had become numerous the competing claims of red and fallow deer, lesser game, hogs, cattle, sheep, and human demands for timber, firing and transport, were subject to intricate regulations.
In theory, not only were deer "the principal beauty and ornament of the forest," but the needs of their economy overrode every other need [ ]
And the needs of the deer economy were many:
Deer require extensive feeding-grounds, both for grass and for the leaves of bushes and lower branches of trees [ ] they favour, in particular, young corn or vegetable crops, the bark of young trees (in winter), and occasional luxuries, such as apple [ ]
In mid-summer the deer required to be left free of all disturbance, while they fawned, and during "fence month" extensive tracts of forest, whether fenced or not, were to be left utterly untroubled. In addition, certain favourite haunts of the deer were to be left as preserved ground throughout the year [ ]
The balance was delicate since the balance of the deer environment is delicate, and it is easy to imagine how fierce the competition could become between keepers and hunters.6
Thompson's description of the Windsor forest suggests two remarks: the first (trivial) is that the memory of game laws was linked to the memory of fences; the second is that, in Europe and England, game protection was already practiced and well known, if only to the advantage of the upper classes. The first European and English immigrants, as a consequence, "brought to the continent a centuries-old body of law, stretching back to the Norman Conquest, which viewed wild animals as important and worth protecting."7 Which takes me to the issue of protection and game laws.
Despite a long-standing critical interest in the legal issue, environmental protection laws in The Pioneers have been given little attention by the critics. As far as I know, the relationship between The Pioneers and the system of protection laws that were in force in New York state at the time was investigated for the first time by E. Arthur Robinson in 1967. In 1985, Charles Swann adds to the issue by bringing new evidence to bear that Cooper was resorting to actually existing laws. A slightly different angle is in Taylor's discussion of the uses of the forest at the time of William Cooper. His essay provides useful information not only on the laws, but also on the attitudes of the newcomers, particularly William in the first place.8
At the end of the eighteenth century, a persistent preoccupation with over-exploitation had already emerged clearly throughout the North East. In the course of the century, the colonies had proceeded to create protection laws for both game and timber. Fire was especially feared. As pointed out by Taylor, fire was a means to practice plantation forestry, produce potash and reduce the incredible natural variety of the American forest. As such it was functional to European expansion. But fire was also a danger to the fields and towns so that laws were enforced to protect settlements and the forest against it. In 1726, New York issued a law discouraging even the burning of old grass as dangerous and "hurtful," and Robinson observes that "In 1788 the new state government of New York had strengthened a colonial statute by empowering town officials to summon inhabitants to aid in extinguishing forest fires" (Kawashima and Tone 173; Robinson 568).
It is well known that The Pioneers includes both themes—over-exploitation of timber and forest fire—in important chapters.9 Temple insists repeatedly on the need to limit access to timber—if only as part of his personal interest in conservation. The description of the forest fire in chapter 38 is a good instance of Cooper's pictorial power, and the author pointedly underlines in a footnote the truthfulness of the description: "The fires in the American forest frequently rage to such an extent as to produce a sensible effect on the atmosphere at the distance of fifty miles" (Cooper 431) The characters' preoccupation with over-exploitation and the risk of fire exposes the forest as a function of society and an already historicized environment. History, however, is complicated by the cultural memories of the often harsh enforcement of the king's rights on all English wildlife.
The fear that Templeton could return to the past is voiced by Natty when he states that "might" rules in Glimmerglass "as well as in the old country" (20). The US, however, was not England and protection laws were vested not in the king but in the states. In the US context, the limits of private property became fuzzier, and the source of much controversy.10 As Thomas reminds his readers, protection laws generally interfered with the "profits" derived from the "initial release of economic energy" due to the opening of new agricultural land. And Temple wants protection but is not ready to limit his title (and profits). His feelings are, at the very least, contradictory. Let me quote from Thomas:
Since, in New York, game laws were based on the premise that ownership of all game was vested in the state, it seemed logical that all citizens should benefit from the use of game. Yet Temple would have disagreed. At the tavern he argues for a return to the European concept of game as a class possession. "I hope to live to see the day, when a man's rights in his game shall be as much respected as his title to his farm." (Thomas, "Pioneers," 100)
The judge understands his environmental stewardship as issuing not from the "public", but from ownership, and wants to protect the forest because it is a potential commodity.11 And it is easy to guess that, in his vision, the forest is bound to accommodate the leisure of a restricted class. So much is foreshadowed when, in the first chapter, he cynically observes that "the time is coming when" the privilege of hunting in "his [Temple's] woods" will "be of value," a value obviously due to scarcity "on the market"—the fading away of the natural flora and fauna of the American North East.
"Admit it!" repeated the agitated Judge; "I here give thee a right to shoot deer, or bears, or anything thou pleasest in my woods, forever. Leather-Stocking is the only other man that I have granted the same privilege to; and the time is coming when it will be of value [ ]" [my italics].
The old hunter gathered his tall person up into an air of pride during this dialogue, but he waited until the other had done speaking.
"There's them living who say that Nathaniel Bumppo's right to shoot on these hills is of older date than Marmaduke Temple's right to forbid him," he said. "But if there's a law about it at all, though who ever heard of a law that a man shouldn't kill deer where he pleased!—but if there is a law at all, it should be to keep people from the use of smooth-bores. A body never knows where his lead will fly, when he pulls the trigger of one of them uncertain firearms."
At the very beginning of the novel, the claim marks a misalignment. To Natty's ears, the judge's "value" only speaks the idiom of "enclosure": the terrain of the forest is undergoing an unprecedented process of spoliation, while powers of access will proceed only as a privilege from landowners (an idea to which Natty opposes the right of "a Man" to "kill deer where he pleases"). To Natty, moreover, Temple's abuse of power is paralleled by his irresponsible use of a rifle with no rifling ("them uncertain fire-arms" says Natty, 23)—a dangerous contraption perfectly suited to the judge's uncouth assault on the forest life, human, as well as non-human.
And it is significant that Natty blames Temple, the landlord, for the destruction of the forest. He perceives clearly, in other words, that the danger does not come from some unchecked extravagance, but is inherent in the new system of property rights:
"Thou sayest well, Leather-Stocking," cried Marmaduke, "and I begin to think it time to put an end to this work of destruction."
"Put an ind, Judge, to your clearings. Ain't the woods His work as well as the pigeons? Use, but don't waste. Wasn't the woods made for the beasts and birds to harbor in? and when man wanted their flesh, their skins, or their feathers, there's the place to seek them." (250)
The passage is often quoted. What interests me most, however, is Natty's statement that it is necessary to enter the woods in order to find game, as if he were an ancient hunter faced with a European fenced-off forest. Natty is clearly negotiating new meanings for the language that—in the new as in the old country—declines protection as a set of prohibitions.
At the time of The Pioneers, New York state had already established protection laws for deer. As in Europe, the first aim was to create protected areas of reproduction. Kawashuma and Tone report that New York set a protected season in 1716 and Robinson claims that "seasons for deer hunting had been set in parts of New York State as early as 1705" (Kawashima and Tone 176. Robinson 571, n. 28). Swann elaborates on Robinson's dates and observes that "it is worth emphasizing that game preservation and preservation of the woods seem to have been felt to belong 'naturally' together in the minds of the historical legislators." He underlines that "In 1708, the killing of deer in Suffolk, King's and Queen's Counties in New York was prohibited between 1 August and 1 January;" that laws continued to be issued throughout the century; and that "While Cooper may not have followed legal history closely enough to have any specific law of those decades in mind, there were a number of laws passed by the New York state legislature in the last decade of the eighteenth century." (Swann 101)
More importantly, Swann unearths an Act passed by New York state in 1788. Besides setting a protected season (January to July), the Act provides the possibility of issuing search warrants, and prohibits the "hounding of deer." It details so precisely the major events of The Pioneers as to seem a blueprint of sorts for the Natty sub-plot. In particular, the way in which the various stages of the search are described are "so close to that described in the text it is hard to believe that Cooper had not consulted either this law or the one in existence in the 1820s" (104). In other words, "in the case of deer law, Cooper is remarkably close to the actual historical detail" (104).
Swann's evidence shows not only that the game laws in The Pioneers deserve serious attention, but also that Cooper is surprisingly precise in terms of his historical sources. Swann's essay, moreover, points the reader in a transatlantic direction. In developing his contention that Cooper uses the game laws to explore the action of justice in the US, Swann draws in Blackstone's Commentaries on the English law (1765), observing that the text "was already widely known and widely influential" in the US (99). Blackstone was no revolutionary, but he openly disliked what he called "forest laws," marking a "fissure," as Swann says, in the edifice of the English game laws (108).
If we assume, as Swann seems to do, that Cooper knew Blackstone's work, then it seems to me very possible that he had also heard about the "Black Act."12 At the time of Blackstone's Commentaries, the English forest and game laws were actually systematized in what was known as the "Black Act," a law directed at suppressing poaching and violence in the king's forests, but it was actually instrumental in applying the death penalty to so many offences that "there is hardly a criminal act which did not come within the provision of the Black Act."13 Thompson summarizes it as follows:
The main group of offences was that of hunting, or stealing red or fallow deer, and the poaching of [smaller game]. These were made capital if the persons offending were armed [ ] and, in the case of deer, if [ ] committed in any of the King's forests [ ] Further offences included [ ] setting fire [ ] forcibly rescuing anyone from custody who was accused of any of these offences. [ ] if a person was accused of any of these offences [ ] by credible witnesses [ ]—and [was] ordered to surrender himself (and if he failed to so surrender)—he could, if apprehended, be deemed guilty and be sentenced to death without further trial. (Thompson 22)
The list clearly exceeds the limits of protection laws, as it also includes general crimes from the penal code. The possibility of arson fire jailbreak, however, contribute to the action of The Pioneers, and I find it almost uncanny that Thompson rephrases the article on search warrants by speaking of an "order to surrender himself" so similar to Hiram's language at Natty's hut.
Which takes me back to the basics of the American game laws. As Thomas argues, the major difference between England and America concerned where the control and ownership of game was vested, whether in the king or the state. The difference entailed a different definition of the landowners' privilege. Whereas in America most people would contend that game could be pursued on all unfenced lands, the king's privilege of ownership extended to regulating not only his property (the forest), but also the margins of the forest—the purlieus. Those "who dwelt in forest purlieus" could hunt deer only no "further than his own lands" and not if "his lands were worth" less than 40s. Deer which came out of the forest proper could not be hunted. In the back and forth between inside and outside, regulations were particularly strict on dogs. In the purlieus, dogs seem to have been very unruly actors. Listen to the steward of Windsor:
[The hunter can't] let his dog follow the deer back into the forest, "but standing there, must call back his dog and blow his horn, and if his dog has kill'd the deer, yet he may not have him, unless his dog seized him in the purlewe, and the beast by his force drew him into the forest."14
In England, dogs caught hunting by the keepers were killed. New York's 1788 Act, on the other hand, similarly forbade the hunting or killing of deer with dogs. Under both laws, Natty is not only guilty of killing a deer and refusing "to surrender;" but is also guilty of keeping (and loving) his dogs. The novel follows suit by telling us that Hector and the pack rouse men to fire at least twice: in the first chapter and in chapter 26. In the first chapter the pack's barking excites Temple to shoot as misguidedly as he does: "but the sound of old Hector was too exhilarating to be quiet" (19). In chapter 26, a malicious hand cuts the dogs' leashes and they start the deer that Natty kills out of season.
In both cases, the dogs move in and out of the trees in the purlieu in which life is organized differently, but not detachedly, from the forest. The purlieu serves excellently as The Pioneers middle ground. It harbors Natty, Mohegan and Oliver; it also accommodates Kirby, who opposes Natty on the need to "use, not waste," but ends up by siding with him when Hiram and his posse enter Natty's space. Like the Windsor forest's steward, The Pioneers understands its fictional purlieu as the space where man meets the forest, a borderline that is crossed, trespassed and negotiated throughout the story by humans and non-humans.
In his essay, Swann claims that "an understanding of the game laws and the ideologies that inform such laws and the very idea of 'game' are profoundly relevant for an understanding of this [Pioneers] complex and brilliant historical novel" (97). At the same time, he shows that Cooper is surprisingly precise in historical terms. Throughout my paper I have followed his criticism and the criticism of others in order to show that Cooper also plays on the distance between history and fiction. In The Pioneers, distance inscribes astutely the passage of game laws from the old to the new rule with its inherent hesitancies.
If Natty fights "to protect the representative of the past (which mostly seems to mean concealing the past), Major Effingham," I would suggest that, by having Temple and Natty acknowledge Effingham's priority of rights, Cooper ends The Pioneers by exposing the way in which the novel brings to bear different transatlantic layers of social and historical discourse (Swann 116). And, after all, Natty is a much more rewarding figure if we think of his ordeal as being common to powerless classes both in Europe and the US.
1 In Cooper's Leatherstocking Novels, Rans names "Grossman, Dekker, Smith, Ringe and McWilliams." He argues that Pioneers stages the settlement's contradictions. Recent criticism is similarly inclined to scrutinize the ideological import of the book. See, Franklin, The New World of James Fenimore Cooper; Adams, The Guardian of the Law; Thomas, Cross-Examinations of Law and Literature.
2In James Fenimore Cooper, Franklin argues that in the 1810s and 1820s the most common term was "settlers"—or "backwoodsmen"—while the word "pioneer" generally retained its original military meaning.
3 The passage from English to American possession is quite obviously the master plot of the novel.
4 Temple's environmental stewardship is discussed by Van Valen, "James Fenimore Cooper and the Conservation Schism;" and in Taylor, "The Great Change Begins;" Thomas, "The Pioneers, or the Sources of American Legal History."
5 In Political Justice in a Republic, McWilliams points out that Natty is arraigned under the accusation of assault and resistance to a search warrant; which does not erase, I think, the clash between Natty and Temple on the forest.
6 With all the attending clashes, and grievances. Both quotations are taken from E.P. Thompson, Whigs and Hunters. Thompson quotes the first passage from N. Boothe, The rights of His Majesty's Forest Asserted, in a Charge given at a Swanimote-Court held in the Castle-Court belonging to the Honor and Castle of Windsor, before the Verderers of the Forest of Windsor, the 27th day of September 1717 (1719).
7 Eric T. Freyfogle and Dale D. Goble, Wildlife Law. I have not been able to consult Thomas A. Lund, American Wildlife Law (1982).
8 Robinson, "Conservation in Cooper's The Pioneers;" Swann, "Guns Mean Democracy;" Taylor, "The Great Change Begins."
9 Robinson notices that Cooper tackles the problem of forest exploitation also in The Chainbearer (567).
10 Swann claims that Americans supported the right of hunters to hunt also on private unfenced lands: "As Lund summarizes the issue: 'The American belief in common rights to wildlife was manifested in doctrines that [ ] allowed free taking even on private lands'" (112).
11 Temple's interest is made explicit by himself (e.g., ch. 2) and by the narrator (ch. 29, 329). Temple's utilitarian approach is similar to William Cooper's. In A Guide in the Wilderness, William divides the native flora into useful, damaging, and neutral (qtd. in Taylor 269).
12 The law was eventually repealed by Robert Peel in 1823, after a debate on penal reform that began in 1810.
13 Leon Radzinowicz, A History of English Criminal Law and its Administration from 1750. Qtd. in Thompson 22.
14 Boothe, qtd. in Thompson 31. On the American unwillingness to acknowledge landowners' privilege, see footnote 12.
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