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Justice and Moral Courage in The Spy

Chris Carleton
(Universiti Sain Malaysia, Penang)

Presented at the 10th Cooper Seminar, James Fenimore Cooper: His Country and His Art at the State University of New York College at Oneonta, July, 1995

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Originally published in James Fenimore Cooper: His Country and His Art (No. 10), Papers from the 1995 Cooper Seminar (No. 10), The State University of New York College at Oneonta. Oneonta, New York. Hugh C. MacDougall, editor. (pp. 17-22)

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James Grossman describes James Fenimore Cooper's The Spy (1821) as "unmistakably American and at the same time straight out of Scott" (24). Because a historical setting is used in The Spy and there are some similarities in style between Scott and Cooper, comparisons are inevitable. The influence of Scott, however, was simply the influence of the day: "Between 1815 and 1830 Sir Walter Scott's historical novels dominated English and continental fiction alike. His powerful personality and copious output gave him a unique control over popular tastes" (Cazamian 39). The historical setting of Westchester county during the American Revolution is unmistakably American and it distinguishes Cooper from Scott, but that setting does not fully account for what is, thematically, essentially American about The Spy. A comparison to a trend other than that of the British historical novel is required to understand Cooper’s essentially American moral scheme.

During the height of Scott’s popularity, the evolution of the British social novel was interrupted. The revolutionary or Jacobin novel had ran its course by 1805 with the publication of William Godwin's Fleetwood, and the British public was, in the words of Louis Cazamian, "in the grip of a Tory reaction which flatly rejected radicalism," and the Jacobin novel's theme of "logical inquiry [into] the institutions of civilisation [under which] the long accumulations of day-to-day experience crumble[d]" (37) was no longer of interest. This theme was not revived in England until Edward Bulwer-Lytton's Paul Clifford, published in 1830, with its inquiry into the British judicial system. From here, the British social novel evolved. The Spy, Cooper's first "unashamedly American" (Pickering 7) novel, can be considered an American revival of this theme but with a greater concern for inquiring into an institution, the law, by searching in the rubble of the past to find the basis of justice, rather than projecting the collapse of an institution because of present injustices, as was the case in the Jacobin novel. The Spy and the course it set for the American novel bears comparison to the evolution of the British social novel because of its spirit of inquiry, and such a comparison is necessary to distinguish what is essentially American about Cooper’s methods of inquiry, especially into the law.

The historical setting of The Spy is described by Donald Ringe as a "moral wasteland where conflicting principles are at war and the only law is might" (29). This "neutral ground" emphasizes the importance of the law and its relationship to identity, noted by Charles Hansford Adams as one of Cooper’s essential themes in his fiction: "the theme of identity...provides the central moral value in his fictional explorations of the law, and his concern with its implications determines the orientation of his lifelong criticism of the institution" (18).

A similar setting and essential theme in both British Jacobin and social novel is often found in the legal limbo in which victims of an unjust judicial system find themselves. This setting is most evident in novels that place an emphasis on both social criticism and the administration of the law, such as William Godwin's Jacobin novel Caleb Williams (1794), and those social novels that can also be considered Newgate novels: Edward Bulwer-Lytton’s Paul Clifford (1830) and Charles Dickens' Oliver Twist (1837).1 The Jacobin novel and the social novel share a similar purpose, and the Jacobin novel can be considered a prototype of the social novel, though the social novel was of a narrower scope, described thus by Keith Hollingsworth:

In the works of Godwin...general questions about society had been argued at stratospheric heights; the social novel was to examine the life of a particular group and thereby exhibit an evil remediable by law or by aroused public sentiment. (66).

One theme that these two genres sometimes shared was a concern for who was deemed a criminal and for what reasons, with an emphasis on innocent character being wrongly placed in the legal and moral position of the criminal. The oppressive presence of the law in these novels exhibits the evil of the absence of justice for an individual and the particular group he represents, and public sentiment is intended to be aroused by depictions of legal injustices.

This same thematic emphasis is evident in The Spy. While Cooper cites patriotism as his theme, false patriotism is rampant and is the social evil that is to be remedial by "law or by aroused public sentiment."2 As noted by John McWilliams, The Spy is only patriotic, "if, by patriotism, Cooper meant an honourable and disinterested adherence to one’s political principles, whether loyalist or American" (49). American justice fired by patriotism is not portrayed in a favourable light: nearly every act of illegal violence is committed by the American irregulars, the Skinners, and the military tribunal that convicts Captain Wharton is an example of "sham military justice" (McWilliams 49, 56), because Wharton is convicted on the basis of guilt by association with Harvey Birch. Wharton is not considered innocent until [18] proven guilty; his judge notes that by crossing enemy lines in disguise, Wharton has "been taken in a situation where [his] life is forfeited-the labor of proving [his] innocence rests with [himself]" (331).3 Much of Cooper’s criticism of false patriotism rests on such illegal and unjust actions, and, Captain Lawton, an American soldier who is able to discern the Skinner’s false patriotism but not the military tribunal’s unjust conviction of Wharton, hopes for a day when "America will learn to distinguish between a patriot and a robber" (301).

In addition to an emphasis on injustices and the failure of judicial principle, The Spy also makes use of a character type found in the British Jacobin and social novel: the innocent character in the legal and moral position of the criminal. In Caleb Williams, the eponymous character is wrongly deemed a criminal by the British legal system because of the machinations of his master, an aristocrat named Falkland. In Paul Clifford, the eponymous character is made a criminal by unjust laws and his early abandonment by his aristocrat father. Oliver Twist is placed in the position of a criminal merely for being poor and an orphan, and for being denied his entitlement to an estate that would allow him to rise above poverty. He is a victim of the Poor Laws and the judicial system’s tendency to confound the poor with the criminal. These characters are considered criminals by a corrupt and inefficient judicial system and an equally corrupt society that supports such a system, but they are also deemed criminals because of their social class.

So too, Harvey Birch is wrongly deemed a criminal, but not for reasons of corrupt and irresponsible aristocrats or of poverty. He is placed in this position because the law confounds the spy with the criminal, but underlying the dubious legal and moral role of his profession is his respect for genuine patriotism and justice that compounds his problems and further divides him from society. This respect is only shared in equal measure by Washington’s private self, Harper, who is also separated from society. Birch’s "honourable and disinterested adherence to [his] political principles," which are those of true patriotism, mainly a respect for justice, marks him as an outcast, but not a victim of social evils, as is the case with his British counterparts. He is a victim of the law because he is morally courageous in a setting where such courage is largely absent. Cooper’s treatment of the innocent character in the position of the criminal differs from British authors because he deals more directly with moral courage than with social class. Moreover, while Godwin, Bulwer-Lytton and Dickens resolve their innocent character’s maltreatment by the law with some degree of reconciliation to society, no such reconciliation is found in Cooper’s treatment of Birch, at least not until Birch dies in the War of 1812. Cooper makes use of similar themes to those used by British novelists, but his purpose is to illustrate the moral courage of the individual, and not just social class, in relation to law and justice. A general study of the main features of the British novel’s treatment of the relationship between the law and justice in this period, then, is crucial for an understanding how Cooper’s The Spy differed in its moral scheme from the British social novel and its prototype, the Jacobin novel.

Godwin intended his Jacobin novel Caleb Williams to be a "general review of the modes of domestic and unrecorded despotism, by which man becomes the destroyer of man" (1). In achieving this goal, Godwin used, according to Gary Kelly, the "classic technique of the socio-historical novel" of illustrating "general social conditions in the experiences of one individual" (33). The one individual through whom general social conditions are illustrated is a servant, Caleb Williams. After discovering his master, Ferdinando Falkland, is a murderer, Williams is falsely accused and convicted of being a thief and is pursued by Falkland to ensure his silence. Williams’ position in society, that of a servant, ensures that he will not be treated fairly by the judicial system, and he recounts the primary reason for the absence of justice for his class: "Six thousand a year shall protect a man from accusation; and the validity of an impeachment shall be superseded, because the author of it is a servant" (227). Falkland is able to rely on these prejudices to escape conviction for his crimes and to persecute Williams.

Injustices pervade the novel, but they favour the upper class and persecute the lower class. The resolution of this problem for Godwin is the abandonment of the confrontational process of the judicial system. Legal punishment is described as the "vengeance of the law" (325), and even the wrongly accused, Williams, views his use of the law as "treason against the sovereignty of truth" (372). The solution to the law’s pitting accuser against accused is to avoid the confrontational process of the legal system in "a frank and fervent expostulation.... in which the soul [is] poured out" (323). This type of meeting never takes place in the novel, and it remains an unrealized hope. Falkland is convicted, but dies before execution. Williams, although entirely innocent, is ruined by his encounters with the law and considers himself a murderer for having resorted to it to convict Falkland. In the absence of significant revision of the judicial system, Williams considers himself as being defeated by the law, though he has served society’s demand that the guilty be punished. Similarly to Cooper in The Spy, Godwin was concerned with a revolution, but Godwin was concerned with a revolution that had not yet taken place and which never did, although legal reform throughout the early nineteenth century improved the administration of British law.4

The Newgate novel, so named because it "contained characters and scenes that could conceivably have been drawn from...The Newgate Calendar" (Kelly 221), was sometimes only concerned with the life of a criminal, but some Newgate [19] novels also used "the classic technique of the socio-historical novel" and general social conditions are illustrated in the experiences of an innocent character in the position of the criminal. The two novels that best fit this category are Edward Bulwer-Lytton’s Paul Clifford and Charles Dickens’ Oliver Twist. The placement of an innocent character in the position of a criminal in these novels is similar to that found in Godwin, but there is less emphasis on legal reform.

Louis Cazamian claims that Paul Clifford was the first novel to display the main features of the British social novel: a "novel with a social thesis; a novel which aims at directly influencing human relations, either in general, or with reference to one particular set of circumstances" (8). Bulwer-Lytton wanted to draw attention to "two errors in our penal institutions-viz, a vicious prison- discipline, and a sanguinary criminal code" (iii-iv). These errors were to be illustrated in his presentation of a lower-class main character, Paul Clifford, who is wrongly convicted. Bulwer-Lytton’s thesis is not well developed and the judicial system’s unfair treatment of those who are innocent is passed over quite briefly, as stated by the narrator: "We do not intend, reader, to indicate, by broad colours and in long detail, the moral deterioration of our hero.... We shall therefore only work out our moral by subtle hints and brief comments" (115). When Clifford is finally brought to trial for his crimes, he states to his judge. "The laws themselves caused me to break the laws.... [Y]our legislation made me what I am!" (324). Like Caleb Williams, Clifford is meant to be considered innocent because he is merely a victim. In the absence of a detailed study of the law, this criticism is not very forceful, and Keith Hollingsworth notes that "The story of Paul’s life [fails] to provide realistic backing for this eloquence" (69). As in Caleb Williams, social position is paramount in presenting a judicial theme, but in this novel, the innocent character wrongly deemed a criminal is reconciled to society by a romantic plot5, in which the judge, upon learning he is Clifford’s father, reduces Clifford’s sentence of execution to transportation to America, where he prospers and marries.

Dickens also used a similar plot device to resolve the difficulties faced by Oliver Twist, though he did treat the presence of criminals in society more seriously than Bulwer-Lytton. Oliver is an innocent character in the position of the criminal because he is recruited by a criminal gang. His mistreatment by the law, when he is wrongly charged but not convicted for theft, his appalling state as an orphan, and the vicious treatment of the orphan by criminals such as Fagin and Bill Sykes are all part of Dickens’ criticism of the unjust treatment of the poor. The resolution of these injustices suffered by Oliver, however, is that of a romance. Oliver is revealed to be entitled to an estate, and once he receives his rights as a citizen, his poverty is alleviated. Oliver is saved by his being given a proper place in society by civil law and by his adoption by a benevolent guardian.

Dickens’ concern with the law, like Godwin and Bulwer-Lytton, is primarily social, with the confounding of the poor and the criminal:

In our station-houses, men and women are every night confined on the most trivial "charges" -- the word is worth noting -- in dungeons, compared with which, those in Newgate occupied by the most atrocious felons, tried, found guilty, and under sentence of death, are palaces. (118)

To reconcile the innocent character in the position of the criminal to society, his class must be elevated; hence the romantic plot devices in Bulwer-Lytton and Dickens.

While Godwin, Bulwer-Lytton and Dickens succeed in arousing public sentiment about shortcomings in the judicial system, their heroes, their innocent characters in the position of the criminal, neither have the power to reform the law nor survive by moral courage alone. They are mainly victims of their social class and are only saved, in the case of Bulwer-Lytton and Dickens, by chance events and by being reconciled to society. A later novel by Bulwer-Lytton, Night and Morning (1840), and one by Dickens, Barnaby Rudge (1841), can also be considered in the same category. Both use "the classic technique of the socio-historical novel" of illustrating "general social conditions in the experiences of one individual." Both involve an innocent character wrongly deemed a criminal who is saved by his reinstatement in society and within his family: Philip Beaufort in Night and Morning is finally able to prove that his parents’ marriage is legitimate, is able to escape his once being involved with criminals in Paris and is married; Barnaby Rudge is cleared of his involvement in the Gordon Riots of 1780 because he is mentally handicapped, he rediscovers his father, who is subsequently hanged for his involvement in a murder, and lives a happy life with his mother. In each case, the author’s concern for the law is mediated by a concern for domestic and social order.

These novels do not account for all British novels written in the late eighteenth and early nineteenth century, but they do illustrate a general trend in the British novel, described thus by Louis Cazamian:

The story of the novel, from Richardson to Dickens, is the story of that [moral and religious] fervour; how it became social in its application; how evil came to appear under the guise of social injustice; how the love of virtue was replaced by pity for the wretched. Dickens’s moral message differed from Richardson’s because his century saw evil in social terms. (38)

[20] In Godwin, Bulwer-Lytton and Dickens, those who are victims of the law are to be pitied, and, with the exception of Godwin, they are to be rewarded with a place in society and a domestic setting in which they are allowed to shield themselves from the realm of moral and legal chaos they once inhabited.

In The Spy, Cooper is also concerned with domestic and social order, but neither social class nor the domestic setting are immune from legal injustices. That is, legal injustices are just as pervasive, but they favour no one. Donald Darnell notes that "If war rages around 'The Locusts,' civility reigns within" (25), but The Locusts is eventually destroyed by the moral chaos of the neutral ground, and those who inhabit it are affected by legal injustices, although theirs is only a temporary disruption. Indeed, in The Locusts, we find a second innocent character in the position of the criminal, Captain Wharton. He is much like the innocent character in the position of the criminal as he is found in the British novel. He avoids punishment for his wrongful conviction for spying because of a promise to help in a time of need made by Washington, in disguise as Harper, when he happened to take shelter at the Whartons' during a storm and noticed Captain Wharton's disguise (used to pass enemy lines unmolested to visit his father). This promise is carried out mainly by Birch, and Wharton escapes injustice, marries and prospers. In contrast, Harvey Birch must face legal injustices without the possibility of being reconciled to a domestic or social setting. But Birch is never an object of pity. His virtue is to be admired.

The Spy is organized on a different principle than that used in the evolution of the social novel: virtue is paramount and the truly wretched are worthy of little pity. The Spy, as an important step in the evolution of the American novel, represented evil mainly as a violation of justice by misled notions about law, rather than prejudice against social class. The moral wasteland of The Spy’s neutral ground represents a particular kind of chaos that is not, essentially, social. As noted by Donald Ringe, the neutral ground is an area of "conflicting principles" -- of too many systems of law operating at cross purposes. There is the Skinners’ claim that "The law of the Neutral Ground is the law of the strongest" (203). The Cow-boys employ summary justice hanging the leader of the Skinners; Captain Lawton also employs summary justice, with the authority of Mosaic law, when he whips the Skinners for their various crimes. The military tribunal that charges and convicts Captain Wharton represents flawed systematized justice. Only the strong moral virtue of the individual can be relied on in this setting, but that kind of individual, such as Harvey Birch, is represented as the enemy of the law, who, like his British counterparts, is made wretched by it, but is not left in a pitiful state.

Birch's position in the Revolution and society is quite low, and the description of the Skinners might well apply to him: "The convenience, and perhaps the necessities, of the leaders of the American arms, in the neighborhood of New York, had induced them to employ certain subordinate agents, of extremely irregular habits, in executing their lesser plans of annoying the enemy" (46). Birch too is a subordinate agent, of irregular habits and employed in the lesser plans of annoying the enemy. Birch and the members of the Skinners are of the lower class and appear to be of dubious value in the fight for liberty. But their class is not of primary importance for Cooper. The lower class is not uniform and does not represent a class persecuted by the law because the commission of, and submission to, injustices is pervasive. Characters must be judged by their actions, rather than their class, with Birch as the outstanding model of moral courage and action.

Birch's role as a spy, however, marks him as an innocent character in the position of the criminal. Cooper's portrayal of the spy is quite sophisticated and surprisingly modern, as noted by John G. Cawelti and Bruce A. Rosenberg; "Cooper is the first real spy novelist -- that real spy novelist -- that is, the writer of the first spy novel -- because he saw what recent writers have had to rediscover, that the spy dwells in liminality, in no-man's land" (36). Although mostly ignored by the Cow-boys, Birch is persecuted by the Skinners, initially distrusted by Lawton, and charged and convicted by the military tribunal; he has little support from the various forms of law on the neutral ground. He dwells in liminality for this reason, but his marginalization is more than simply a question of his concealing his allegiance to Washington. His is primarily a moral struggle that transcends his role as a spy, and his position in society and in the military. Barton Levi St. Armand finds this transcendent quality in Birch by placing him on a mythical level, as Cooper's adaptation of "the Legend of the Wandering Jew" (350). St. Armand accounts well for much of Birch's character: his burden, his wandering and his avariciousness. His study is of great value in its isolating of the archetypal qualities of Birch's character, but it does not account for something more mundanely present: Birch's moral courage.

Few of Birch’s spying activities serve his personal interests and sometimes not even military interests. He assists Captain Wharton in crossing the enemy lines by providing him with a disguise and genuine pass, signed by Washington. Other than this perhaps giving him the appearance of loyalist sympathies, this action appears to serve no higher purpose in the Revolution. His love of justice is apparent when he informs the Whartons of Wellmere's intended bigamous marriage to Sarah Wharton, despite the pain this brings to the family. When serving the interests of the Revolution, he [21] rises above personal concerns, as when he warns Lawton of an impending assassination attempt, despite Lawton's having pursued and captured him in the past. His greatest act is the rescue of Captain Wharton from a military tribunal, "a court of martial law...that own[s] the principles of all free governments" (328), but operates on the principle of guilty until proven innocent. He ensures, with the help of Washington, that justice is attained when the judicial system fails to do so, but he is unable to attain justice for himself. Birch claims that "such are their laws; the man who fights, and kills and plunders is honored; but he who serves his country as a spy, no matter how faithfully, no matter how honestly, lives to be reviled, or dies like the vilest criminal" (356).

This kind of anti-legal rhetoric, however, is not the main means by which Birch is vindicated. Nor are such proclamations Cooper's main means of criticism. Like Paul Clifford, Birch might claim that "Your legislation made me what I am," but, whereas Clifford is at the mercy of such legislation, Birch consistently transcends the law through his actions. Publicly, he is reviled, but privately he is esteemed by those who value the moral courage of the individual over the common view of public morality. While only Washington recognizes the full extent of his patriotism and his love of virtue and justice, his actions and his humility cast false patriots, such as the Skinners, into a critical light.

Washington's recognition of Birch is, essentially, only that allowable in his capacity as a private citizen, as Harper. Washington tells Birch,

the same reasons which have hitherto compelled me to expose your valuable life will still exist, and prevent me from openly asserting your character, in private I can always be your friend -- fail not apply to me, so long will I freely share with a man who feels nobly and acts so well (424).

Birch refuses any remuneration for his services, claiming patriotism alone has motivated him. He is allowed no legitimate role in society, and, his father having died in the course of the novel, he has no place in a domestic setting. Yet in no way can he be considered as having been defeated by his mistreatment by the law, and he remains heroic. He is a model of moral courage to himself, Washington and the Whartons, for having helped Captain Wharton escape the military tribunal. This is not to say that the law does not have a detrimental effect, but simply that Birch is able to rise above those effects to an extent that is not possible in other characters.

Charles Hansford Adams presents a crucial argument concerning Cooper's portrayal of the law that clarifies Birch's position: "in Cooper's early works...the law is guilty of disrupting both individual identify and the emotional and psychological bonds that make coherent the social structure on which personal identity depends" (37). Washington has his personal identity disrupted by the law in his inability to recognize the achievement of Birch publicly and give him the position in society he deserves because of the dubious legal and social position of the spy. He must work with Birch to pursue justice only under the alias of Harper. The legal distinctions of spying disrupts Captain Wharton's identity because he is deemed a spy rather than a dutiful son when he visits his father in disguise. Birch's identity as a patriot is disrupted because of the law, but the "emotional and psychological bonds that make coherent the social structure on which personal identity depends" are not entirely disrupted. Birch has no bond to a social structure because of the law, but he has a bond to a higher notion of justice based on "honorable and disinterested adherence to [his] political principles" (McWilliams 49), so the disruption of his personal identity by the law is of little importance.

There is no happy ending for this innocent character in the position of the criminal, but there is no need for it. For Cooper, justice is composed not just of domestic or social order, but also of the individual capable of acting justly. Fully reconciling Birch to society would be superfluous in that he serves the ends of justice in the absence of a secure social or domestic position. The Spy does make use of "the classic technique of the socio-historical novel" of illustrating "general social conditions in the experiences of one individual," but the one individual, Birch, is capable of rising above those conditions, not by an elevation in his social class, but by his moral courage.

The Spy, then, is not a social novel in the sense of it having a social thesis. Rather, it has a moral thesis concerning the importance of the individual's just actions as part of the basis of justice in society. The primacy of this moral thesis over a social thesis is what defines Cooper's establishment of the American novel as thematically distinct from the evolution of the social novel in the late eighteenth and early nineteenth century. This moral thesis is also evident in the Leatherstocking Tales, in which Natty Bumppo is often an innocent character in the position of the criminal, but, like Birch, he is more an adherent of honourable and disinterested political principles than a victim of social evils. Of course, Cooper was not advocating reliance on an individual's sense of justice alone for the basis of society, but he neither allowed the individual with a strong sense of justice to be defeated by society nor to be reconciled to it in these novels. For Cooper, the innocent character in the position of the criminal represents a moral standard against which society can be criticized because that character transcends, rather than is victimized by, his position in society. In contrast to the evolution of the British social novel, Cooper presented a victim of the law who could survive by moral courage alone.


1. Louis Cazamian designates Paul Clifford as the first British social novel but acknowledges that the "novel with a purpose," such as Godwin's Caleb Williams, existed before 1830 and was revitalized by novelists such as Bulwer-Lytton and Dickens.

2. In the preface to this edition of The Spy, Cooper stated, "There is a purity in real patriotism which elevates its subject above all grosser motives of selfishness.... It has the beauty of self-elevation, without the alloy of personal interest (Preface, The Spy, [London: Henry Colburn and Richard Bentley, 1831] v).

3. James Fenimore Cooper, The Spy: A Tale of the Neutral Ground, 1821, ed. James H. Pickering (Schenectady: New College and University Press, 1971). All further citations will be taken from this edition, a reprint of the American first edition, published by Wiley and Halsted in 1821.

4. Capital offenses were reduced from 223 to only four between 1819 and 1861. The Metropolitan Police were established in 1829 and greatly reduced the crime rate. See Leon Radzinowicz's English Law and its Administration from 1750 (London: Steven and Sons, 1948) vols. I-IV for a comprehensive study of British legal reform in the eighteenth and nineteenth centuries.

5. Stuart Miller defines the romantic plot as follows: "there is an ordering of events, but it is not a probable ordering. The wonderful romance plot unravels a complicated pattern of chance and coincidence...[and] a mysterious order...seems to exist in events," (Stuart Miller, The Picaresque Novel, [Cleveland: The Press of Case Western Reserve University, 1967] 10).

Works Cited