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James Fenimore Cooper -- A Re-Appraisal
Papers from the 1951 James Fenimore Cooper Conference
Cooperstown, New York

Cooper and the Responsibility of the Press

James Grossman*
(Lawyer; author of James Fenimore Cooper {1949})

Published as New York History, Vol. 35, No. 4 (October, 1954), pp. 512-521.
(Special Issue -- James Fenimore Cooper: A Re-Appraisal)

© 1954, New York State Historical Association
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"'I THINK you will agree with me...in believing it excessively presuming in an American to pretend to be different from his fellow-citizens.'" The words I have just quoted are literally Cooper's; they appear in his novel, Homeward Bound.1 But the sentiment expressed is not Cooper's. On the contrary, it is a sentiment which he attributes to his enemies. For these words are spoken in the novel by the newspaper editor, Steadfast Dodge, and every time that Dodge speaks in the novel it is to utter views which the novelist despises.

Steadfast Dodge, taken by himself, is a worthless, trivial person, too trivial to be the object of serious consideration. But Cooper insists that Dodge must be taken seriously for the very reason that he cannot be taken by himself. There are too many of him, too many people in America, so Cooper asserts, just like this narrow-minded, provincial editor, and Dodge as a newspaper editor has the power of multiplying himself, of making people who are like him, or at least he has the power of making people accept his views and ideas as their own and his way of life as the American way of life.

In Homeward Bound, it is Dodge's ideas which are the chief subject of satire. In the sequel, Home as Found, we see Dodge's ideas about life turned into unpleasant reality. Life in America, lived according to the ideals of Steadfast Dodge and his fellow-editors, is distressingly dreary. We are shown in Home as Found a society which smugly proclaims itself to be perfect, but all of whose members are discontented with their actual position in it, a society restlessly consumed by a "go ahead" spirit and without memory of its own past. It is a world without privacy in which one may not resent the prying scrutiny of one's neighbors, a world of mass opinion in which every one is expected to think and act just like every one else. It is, in short, a world without individuality. And individuality, according to Cooper, is the aim of political liberty; for only a man who is allowed "to pursue his means of happiness in his own manner" is truly free.2

Cooper's picture of American life in the bitter pages of Home as Found was not entirely new to Americans. They had read and been angered by equally bitter descriptions in the books of English travellers like Mrs. Trollope, who ascribed American faults to American political institutions. What was new in Cooper's case was the unforgivable fact that the critic was himself an American, that he professed to speak as an advocate of American democracy, and that as its advocate he attacked American life and the American press. Newspaper editors enjoyed hurling empty, noisy defiances at the enemies of freedom at home and abroad. The editors were freedom's self-appointed defenders, and it was axiomatic that whoever attacked the press attacked freedom itself. American editors were hopelessly confused as well as outraged -- perhaps they still would be -- when they were attacked on the ground that they themselves were enemies of freedom.

For the newspaper editors of the 1830's the word "freedom" was part of their political stock in trade. It was a word which they used and understood chiefly in terms of the historical struggle for political freedom. In this sense America had won its freedom in a glorious struggle against a foreign tyrant; to preserve its freedom all that was necessary was sound political action, that is, voting for the political party which the particular newspaper supported. Foreigners spoke ill of America because they disliked its free institutions. Therefore, according to newspaper logic, whoever disparaged American life must speak from an alien point of view, hostile to America's freedom. This line of newspaper reasoning can be seen in its very perfection in the most vicious attack on Cooper after the publication of Home as Found, the attack by Webb, the editor of the Morning Courier and New York Enquirer. According to Webb, Cooper was a traitor who wrote Home as Found to make money in England, a viper who should leave America and never return to it.3

When we read Cooper's strictures on American life we are likely to believe them exaggerated because of a certain intrusive vehemence of his rhetoric, but when we read the venomous newspaper rhetoric directed against Cooper, we realize some of the force of Cooper's arguments. It had been one of Cooper's main points that in America one could not make any adverse criticism of society as a whole and yet one was permitted to make violent attacks on an individual.4 The newspaper response to Home as Found demonstrated how deeply criticism of America was resented and how far editors would go in defaming the individual whose criticism they resented.

Cooper answered Webb by having him indicted for libel, a proceeding which caused the editors to libel Cooper again, and for these new libels Cooper brought civil suits for damages. Newspaper comments on these suits were themselves libelous in their expression and led to new libel suits by Cooper. The law, as represented by judges, was on Cooper's side, but the law, as represented by juries, was less favorable to him. Judges instructed juries to bring in verdicts for Cooper and sometimes suggested that the damages should be substantial; but the juries' verdicts were on the whole only for relatively small amounts. Cooper won his war against the press in the sense that after years of his numerous and energetically conducted libel suits editors defamed him less frequently. But if Cooper silenced the editors, he suffered also by their silence; in the last years of his life his novels were not adequately reviewed.

It has sometimes been suggested that Cooper significantly influenced the libel law of New York, but this seems to me doubtful. On the whole he used the law of libel as he found it and left it ultimately much as it had been before he used it. Cooper's vast reckless energy might make this slow, heavy weapon perform like a rapid-fire mechanism. But for ordinary people of average prudence, the uncertainty of the law's performance is still its most significant feature. The uncertainty of proving truth by legal evidence deters the prudent from publishing what they believe to be true, and the uncertainty of an adequate remedy deters the prudent from suing when they believe they have been injured by falsehood.

If Cooper won his war against the press, he nevertheless lost what was to have been its decisive battle. After three trials Webb was acquitted. The jurors who stubbornly refused to send Webb to jail were demonstrating that the law in action was quite different from the law on the books. The statutes might be clear that whoever libeled another was responsible to society and should be punished, but the juries, acting for the moment as society, were equally clear that they were not interested in holding an editor to his responsibilities by sending him to jail as a criminal.

The editors claimed that in defending themselves against Cooper's lawsuits they were also defending the freedom of the press. There is some historical merit to their position. The law of libel originated in England before the concept of the freedom of the press was established, and was in large part used as a means of punishing criticism of the government. Much of the press's struggle for freedom in the eighteenth century was a struggle against prosecutions for libel, a struggle in which judges were often against the press and juries were on its side. It was considered a victory for the freedom of the press when late in the eighteenth century a statute was enacted in Parliament giving juries the right in criminal prosecutions for libel to be judges of the law as well as of the facts of the case.5 This English statute was adopted in New York,6 and the jury that acquitted Webb was exercising its theoretical legal right as well as its practical power to take the law into its own hands. The procedural device which aided Webb is an instance of what an uneasy compromise the law of libel has made between conflicting social interests -- the interest of society in protecting a free press and the interest of society in protecting its members from damage by the falsehoods of the press.

To Fenimore Cooper, a compromise like this was not only illogical but also socially undesirable. Cooper believed that the press, like juries, had outlived in part its historical function. The press had been useful in the struggle for political liberty, for it could help arouse public opinion against tyrannical governments. But after political democracy had been established, as it has been in Armerica, the role of public opinion and of the press as its supporter changed significantly. For in a democracy, Cooper pointed out, the source of ultimate power, and hence, the threat to freedom, was no longer in the government but in the public itself. "In America," Cooper wrote, "it is indispensable that every well wisher of true liberty should understand that acts of tyranny can only proceed from the publick. The publick, then, is to be watched, in this country, as, in other countries kings and aristocrats are to be watched."7 We are accustomed to think of public opinion as the greatest support of democracy, but to Cooper it was clear that "it is a begetting vice of democracies to substitute publick opinion for law. This is the usual form in which masses of men exhibit their tyranny."8

Of course, if the regard for public opinion is democracy's vice rather than its virtue, then it follows that the press, which is one of the great sources of public opinion, is also a potential enemy of liberty. To Cooper, the press seemed an unfortunate source of public opinion, because a newspaper's concern is not with facts as facts but as news. And news, Cooper pointed out, is a commodity of fluctuating value, that has to be sold immediately, before its trustworthiness as fact can be adequately investigated. Cooper believed that it was a great evil that newspapers were not entirely made up of falsehoods but contained some truth; for if they were entirely false, they would soon be harmless.9

Aside from its falsehoods, which misled the public, the position of the press as the leader of public opinion made it a despot which "tyrannizes over publick men, letters, the arts, the stage, and even over private life."10 For it was in the force of public opinion that Cooper found the explanation of what he believed to be the great paradox of American life: that in America where there was so much political liberty, there was much less personal liberty than in almost every other country.

We are committed to the value of free discussion and free inquiry as indispensable to liberty. Fenimore Cooper's life work shows his own intense commitment to these values. Yet in a sense Homeward Bound and Home as Found are a parody of our faith. Steadfast Dodge's newspaper is called The Active Inquirer. One of Dodge's methods of active inquiry is sneaking into people's rooms to rummage through their private papers. To Dodge, free discussion is also to be equally unrestrained by any considerations of privacy. He is indignant at the stuffy heroine of the novel who when she was his fellow-passenger at sea never spoke once "of her want of appetite, of sea-sickness, or of anything relating to her ailings even." Dodge, in the name of the freedom of the press, claims the unlimited right to gossip and snoop. He is at one with the village gossip in the novel, who also in the name of liberty, wants to know everything. "Indeed," says the gossip, "that is not a free country in which there are any secrets. I keep nothing from my neighbors, and, to own the truth, I do not like my neighbors to keep anything from me."11

When Cooper shows us that the newspaper editor and the village gossip are identical in spirit, he is doing much more than satirizing the editor. He is also satlrlzlng us, his readers. Behind all genuinely active inquiry is a curiosity about life that often takes the socially undesirable form of sheer nosiness. Severe as Cooper is on Steadfast Dodge, he realizes that the editor is not solely responsible for the level of the tone of the press. The editor is supplying a genuine demand; he is reflecting public taste as well as creating it. Unlike the modern publicity expert, Dodge does not regard himself as the conscious manipulator of public opinion. He is a successful despot because be believes the myth which he tells the public -- that he is its slave. The myth, indeed, has its own truth. Dodge is a cowardly man who lives in dread of public opinion. It is through a slave's psychology that he exercises his tyranny.

Like a slave, Steadfast Dodge flatters his master, the public. Whatever the public does, thinks or wants is right. In the epigraph to Home as Found Cooper addresses the American public in the words of Prince Hal: "Thou art perfect." But what Cooper has said in mockery is for Dodge one of the simple truths of life. Every day his newspaper tells the public in one form or another that it is perfect. If the public is perfect in everything, it follows, from Dodge's point of view, that it is wrong to differ from the public in anything. It is presuming for a man to claim the right to be different from his neighbors in his speech, manners, dress or habits. For no matter how trivial and harmless these differences may be in themselves, they imply that the public is in its speech, manners, dress or habits less than perfect. In the name of the public, Dodge is the enemy of difference in any form in which it appears. He uses the freedom of the press which he enjoys to keep others from offending the public by being in their own way free.

Cooper was aware that not all newspaper editors were men like Steadfast Dodge. Some of Cooper's own friends were editors -- Colonel Prentiss of the Cooperstown Freeman's Journal and William Cullen Bryant of the New York Post, among others. Cooper had been able to say some good things about the press in his earlier work on America, Notions of the Americans;12 but Notions of the Americans was a determined effort to praise everything about America. It is one of those happy nostalgic memories of life at home that are sometimes written by Americans living happily abroad. If Notions of the Americans reflects Cooper's views about the press at that time, then he changed his views suddenly and sharply, only a little while after. Even before he returned to America he was involved in political quarrels with New York newspapers, and after these quarrels Cooper never spoke well of the press. Individual editors might still be his friends, but in writing about editors as a class he found it more important to write about their faults rather than their virtues, about the harm they did rather than about the good that they might do.

While intrusion on private life was for Cooper one of the great faults of the press, this was by no means its only fault. Cooper never asserted, as far as I can recall, that the press was an intruder wherever it went; but the tendency of his writing as a whole is to show the press as an intruder, even in the field of public affairs, where it obviously has a function to perform. In his novel The Crater one of the causes of the downfall of a Utopian colony in the South Seas is the arrival of a printer who sets up a paper, The Crater Truth-Teller.13

In Cooper's last novel, The Ways of the Hour, we are shown the unfortunate influence of the press in the administration of justice through trial by jury. Cooper opposed trial by jury for the very reason which we use to justify it -- it is a reflection of public opinion. Jurors under the guise of finding facts often in effect nullify unpopular laws or prevent the application of the laws to cases in which public opinion is against applying them. If we assume with Cooper that our laws are sound because they are the laws of a democratic government, then there is considerable force to his arguments against jury trial. Cooper shows us in The Ways of the Hour the law administered not in the courtroom but outside it. The jury brings into its deliberations all of the prejudices of the individual jurors, all of the rumors and misinformation that have been industriously spread by both sides and circulated by the newspapers. In the novel, even medical witnesses who testify are influenced in their statement of medical facts by public opinion on what these facts are.

Whatever we may think of trial by jury we are not completely happy about the role of newspapers in relation to jury trials. We read eagerly everything in the newspapers about an interesting case and are at once confronted with this dilemma: Are those who have read so much in advance of the trial equipped to be impartial jurors, for is it not likely that they have prejudged the case? Are those who have read nothing fit to be jurors at all, for is it likely that they have enough interest in public affairs to be entrusted with their administration? To Cooper, the answer to the dilemma was that no statement of any kind should be published by any newspaper about a case while it was pending in court.14

Cooper's suggested remedy may strike us as more drastic than the evil which it is intended to cure. For while it was Cooper's idea that to protect democracy the public must be watched, we still hold to the more conventional idea that the government and the administration of justice will always bear watching. Our idea has become even more firmly embodied in the law than it was in Cooper's day. Newspaper reports of public proceedings, including trials, are privileged and cannot be the subject of libel suits so long as the reports are accurate.15

It would be only a slight caricature of Cooper's views to say that he believed in reversing the generally accepted form of the doctrine of laissez-faire. The conventional form of this doctrine is that government should let people alone; Cooper's version is, the people should let government alone. We certainly do not let government alone, or if we do, we do so from what we believe are unworthy motives. When we are acting as we believe good citizens should, we offer our advice to our mayor, congressman, senator and president. It is often unsolicited. But oddly enough, it is often solicited by one part of the government against another part. When important legislation is pending and the president or some other high official makes a radio speech on behalf of the legislation, he is actually asking the public to use its influence on another part of the government, the Congress. The legislation may be extremely complicated; we may have followed its course only casually in newspapers. But we tend to feel ashamed if we do not have clear precise views on its merits, and to stifle our shame, we take one position or another on it. We may only be echoing our newspaper or the radio commentator to whom we listen. But we feel that we have performed a duty by having taken a stand.

Fenimore Cooper would say that we should have respected our shame, and that it would have been better for us to have no opinions than to have adopted them so irresponsibly.16 This may seem to us at first glance a counsel to idleness. But perhaps today more than ever, when there are so many pressures on us to have so many opinions on so many complex subjects, it is not so much a counsel to idleness as a counsel to courage, a counsel to take thought for ourselves and to have the courage to admit our own failures of thought rather than to adopt unthinkingly the thoughts of others. Behind the question of the responsibility of the press is the question of our own responsibility. Perhaps, in the final analysis, what Cooper is saying to us is, that if we would be free we must be responsible, and that in accepting our responsibility we must accept it with an awareness of its limitations. Cooper is not urging us to be ignorant but is urging us to attain the highest and most difficult form of knowledge, the knowledge of our own limitations and ignorance.

NOTES

* Mr. Grossman, a graduate of Columbia College and Columbia Law School, who practices law in New York City, is the author of James Fenimore Cooper in the American Men of Letters Series.

1. Homeward Bound, 106. (In these notes page reference to Cooper's novels are from the edition of D. Appleton & Company, New York.)

2. The American Democrat (New York: Alfred A. Knopf, 1951), 174.

3. Morning Courier and New York Enquirer. November 22, 1838. And see also, Ethel R. Outland, 'The Effingham' Libels on Cooper (Madison, Wisconsin, 1929).

4. For example, The American Democrat, vii-viii, and Home as Found, 7.

5. Fox's Libel Act, 1792 (52 Geo. S, c. 60). This act and the 18th century cases leading up to it are discussed in W. S. Holdsworth, A History of English Law (Boston: Little, Brown and Company, 1922-1938) Vol. X, pp. 672-696. For the part played by the court of Star Chamber in creating the law of libel in the 16th and 17th centuries. see Holdsworth, Vol. V, pp. 208-212.

6. (New York Laws of 1805, ch. 90. Now in Article I, Section 8 of the New York Constitution and Section 418 of the N. Y. Code of Criminal Procedure.

7. The American Democrat, 141.

8. Ibid. 61.

9. See, for example, The Ways of the Hour, 58, and The American Democrat, 124.

10. The American Democrat, 125.

11. Home as Found, 250.

12. Notions of the Americans (Philadelphia: Carey, Lea & Blanchard, new edition, 1855). Vol. II, pp. 105-106, to the effect that the infrequency of libel suits proved how decent the tone of the press was, and that it was public opinion which kept the press within certain limits. Cooper may have believed these statements in 1828, when Notions was first published, but it is surprising that he allowed these statements to remain in the 1855 edition.

13 The Crater, chapter 29.

14. The Ways of the Hour, 84-85.

15. N. Y. Civil Practice Act, section 337.

16. See, for example, Eve Effingham's last words in Home as Found, 473, which are in effect comment on the newspaper story at the end of Homeward Bound, 522.

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