Cooper, Livingston, and Death Penalty Reform

John Cyril Barton (University of Missouri, Kansas City)

Presented at the Cooper Panel No. 1 (James Fenimore Cooper: Nation, Law, and the Sea) at the 2010 Conference of the American Literature Association in San Francisco, California.

Originally published in James Fenimore Cooper Society Miscellaneous Papers No. 27, pp. 1-5 Steven Harthorn and Shalicia Wilson, Editors.

[May be reproduced for instructional use by individuals or institutions; commercial use prohibited.]

From the time James Fenimore Cooper wrote his first popular novel, The Spy, until the publication of The Ways of the Hour, his last, capital punishment was a significant topic of debate in the United States. In 1821, the year The Spy was first published, Edward Livingston, a former New York mayor and congressman, delivered before the Louisiana State Legislature an influential report on penal reform that, among other things, called for the abolition of the death penalty. The following year Livingston’s Report on the Plan of a Penal Code was published as a book and widely read across the nation. ¹ During the 1830s and especially in the 1840s, Livingston’s and Cooper’s native New York became a hotbed for anti-gallows activism. ² John L. Sullivan, a prominent New York politician and the founding editor of The Democratic Review, led a national campaign to abolish capital punishment in the 1840s. Like Livingston, O’Sullivan authored a widely read legislative report advocating the abolition of the death penalty (O’Sullivan’s Report in Favor of the Abolition of the Punishment of Death by Law was first presented before the New York State Legislature in 1841 and later published that year as a book for popular consumption), and he used his distinguished journal to promote the cause by publishing anti-gallows fiction and poetry by Nathanial Hawthorne, Walt Whitman, John Greenleaf Whittier, and other then-popular-but-now-forgotten writers.

Elsewhere, I have argued at length that the movement to abolish the death penalty in antebellum American provides a crucial but neglected context for understanding the so-called American Renaissance (Barton, “Anti-Gallows Movement”). In addition to the authors named above, Lydia Maria Child, Frederick Douglass, Margaret Fuller, George Lippard, and Sylvester Judd all wrote in opposition to capital punishment, as did Cooper’s contemporaries and rival novelists, John Neal and William Gilmore Simms — the latter of whom was dubbed “The Cooper of the South.” In this presentation, I examine Cooper’s work in relation to the death penalty and its reform — a subject almost entirely overlooked in Cooper scholarship. My longer essay, from which this talk draws, looks closely at capital punishment as both topic and trope in several of Cooper’s works: The Spy: A Tale of the Neutral Ground (1821), The Prairie: A Tale (1827), The Headsman; or, The Abbaye des Vignerons (1833), The Deerslayer; or, The First Warpath (1841), and The Wing-and-the-Wing; or, Le Feu-Follet (1842), and The Ways of the Hour: A Tale (1850). In it, I demonstrate how Cooper not only draws upon the dramaturgy of the death penalty in plotting his fiction but, like Neal and Simms, occasionally uses his novels to address the controversy over capital punishment. Obviously, I can’t flesh out that argument today. In the interest of time, I’ll focus here on just The Spy and The Ways of the Hour — the bookends to my larger project and, of course, the bookends to Cooper’s long career as a novelist — and I’ll briefly put these novels in dialogue with contemporaneous literary works that responded to the debate over the death penalty. I’ll bridge my discussion of these two novels by closely analyzing an 1829 letter that Livingston wrote to Cooper on the subject of his fiction and the anti-gallows cause.

We can begin, then, with The Spy, a novel framed by debate over Major John André’s execution and punctuated by the near executions of both Harvey Birch and Henry Wharton, the former unfolding near the novel’s structural center and the latter serving as its dramatic conclusion. With André’s historical execution as a point of reference throughout the novel and the near executions of Birch and Wharton plotted at critical moments in the narrative (not to mention the graphic description of an extralegal hanging of a Skinner by a Cowboy in perhaps the novel’s nastiest scene), the gallows can be seen as providing The Spy with its basic architecture — its narrative scaffolding, if you will — much like the three scaffold scenes that help to structure Hawthorne’s The Scarlet Letter. By organizing in part his first popular novel around a series of gallows scenes, Cooper was participating in what I have elsewhere called the aesthetics of crime and capital punishment — a dominant aesthetics of the age perhaps best exemplified in Simms’ popular Border Romances, many of which overtly criticized the administration of lawful death (Barton, “Simms and Aesthetics”). However, the first American novel to make an out-and-out statement against the gallows was Neal’s Logan (1821), which staged an extended dialogue between two witnesses at an execution to show the misguided principles of capital punishment and its failure to deter crime. Neal himself was a long-time opponent of the gallows. “Upon the death-penalty, or what is called ‘capital punishment,’” he later wrote in his 1866 autobiography, “I have ... written much, and not a little to the purpose; having no belief in the wisdom of strangulation, for men, women, and children, however much they might seem to deserve it, and being fully persuaded that the worst men have most need of repentance, and that they who are unfit to live, are still more unfit to die” (Wandering Recollections 390). Reflecting on his 1821 novel and its impact on death-penalty reform, Neal went on to state: “I believe that the changes which have followed, when year after year, both abroad and at home, in the mode of execution, originated with my “Logan” (390).

Cooper, unlike Neal, never came out against capital punishment; nor does The Spy offer a detailed statement in favor of abolishing the practice along the lines of Neal’s novel. Published a year before Logan, however, Cooper’s novel does question the purpose of the death penalty in a dialogue between the courageous Captain Lawton — the novel’s symbolic agent of “Law,” as his name suggests — and Dr. Sitgreaves, a comical yet philosophical character whose musings make him akin to a wise, Shakespearean fool. The conversation follows a day’s skirmish and concerns Harvey Birch, who is already under sentence of death and who has just eluded Lawton’s capture. It casually unfolds as Sitgreaves, attending to Lawton’s wounds, says “If I have any wish at all to destroy human life, it is to have the pleasure of seeing that traitor hanged.” To this thought, Lawton replies: “I thought your business was to cure, and not to slay” (The Spy 146). When the surgeon concurs but confesses to feel “a very unsophistical temper towards that spy,” the captain responds with a firm rejoinder: “You should not encourage such feelings of animosity to any of your fellow creatures.” Surprised by the sentiment of the usually severe Lawton, Sitgreaves agrees in principle, calling the captain’s “doctrine” a “just” one, but maintains that cases like Birch’s mark an “exception” to the rule. Pondering the matter further, however, Sitgreaves comes around to Lawton’s point of view: “It is not only cruel to the sufferer,” the surgeon says to conclude the conversion, “but sometimes unjust to others, to take human life where a less punishment would answer the purpose” (146).

In a novel in which the gallows plays such a prominent role, the Sitgreaves-Lawton exchange has general application. It provides the basis for a critique of Washington’s decision to execute Major André, for whom Birch is often taken by critics as a crass double, ³ and it colors the gallows scenes to come with a bit of anti-gallows logic. It is indeed surprising that this dialectic on the legitimacy-or rather, illegitimacy-of lawful death is worked out through Lawton, an adherent to Mosaic law in the scene in which he justly punishes the Skinners for “burning, robbing, and murdering” (211) right after he justly rewards them for Birch’s capture, and the voice of law’s vengeance in an earlier scene in which his character is first introduced. “If I catch [Birch],” Lawton declares with pronounced malice when we first meet him in the Whartons’ home, “he will dangle from the limbs of one of his namesakes” (65). Such a thinly veiled allusion to summary hanging again evokes the figure of André, whose execution had been hotly debated by the Wharton family just before Lawton’s arrival and about whom, as Richard Henry Dana, Sr. wrote in a 1823 letter to Cooper likening Birch to the executed British spy, “there never was an individual, who in so short a time ... [has] created such a deep and lasting and general sympathy” (Dana, Letter to Cooper, Correspondence 93).

Six years later, Cooper received a letter from another distinguished lawyer-author that directly took up the question of the death penalty in relation to Cooper’s craft. It was written by Edward Livingston, a preeminent statesman and the nation’s foremost opponent of the gallows. By the time of Livingston’s letter, Cooper had written some of his most popular and critically acclaimed works, including The Pioneers (1823), The Pilot (1824), The Last of the Mohicans (1826), and The Prairie (1827). The last of these novels turns on a curious enactment of capital punishment: the ultimately self-inflicted, extralegal execution of Abiram White for the murder of his nephew, Asa Bush. A fascinating case of fratricide, the scene evokes the biblical parable of Cain and Abel and places the gruff Ishmael Bush, who has his own problems with the law, in the ironic position of judge. If Livingston had this example or one of The Spy’s gallows scenes or discussions in mind when writing Cooper, he didn’t mention it (or them) in the letter. Instead, he appealed to Cooper’s celebrity “in the literary world” and “the obligation which that celebrity has created of using your talents in such a way as to promote the greatest good.” Without “further preface,” the famous senator explained why he was writing the famous novelist: “I know not whether you have ever turned your attention to the state of our penal law, or have formed an opinion on the great question whether death ought ever to be inflicted as a punishment — I have, and have come to the conclusion that as society is now formed neither justice nor necessity nor expediency require or permit this punishment” (Livingston, Letter to Cooper, Correspondence 174).

Referring to his seminal penal reports, which he enclosed with the letter, Livingston went on to appeal to Cooper’s duty as a citizen of both the United States and the world, asking him “to cooperate in the abolition of a practice supported only by prejudice and the fear of innovation which outrages humanity, and disgraces the legislation of the civilized world” (174). Cooper, Livingston reasoned, was in a unique position to effect social change. “You are one of the very, very few,” he wrote,

whose work are [sic] not only read in all civilized nations, but by all the reading part of every nation. The department of literature which you have for the most part adopted is one that enables you to impress most forcibly on the mind the truths you may wish to inculcate. The skill with which you embody the passions and exemplify their operation and effects, the genius which enables you to give to fiction all the interest of reality, the knowledge of human nature by which you detect and expose the most secret workings of the mind, and the command of language and descriptive powers you possess, to throw into the most interest form the incidents your fancy creates, all these fit you in the most eminent degree for the task I propose. (175)

More than mere flattery, Livingston’s remarks call attention to the important cultural work that literature — and especially the novel — could perform in the arenas of law and politics. Two decades later Harriet Beecher Stowe’s Uncle Tom’s Cabin would demonstrate the full potential of such a claim by becoming, as Lincoln famously called it, “the book that started this great war” (qtd. in Stowe xliii), and today law-and-literature scholars have re-assessed the performative role of Cooper’s fiction in law and politics (I’m thinking here particularly of the excellent scholarship of Brook Thomas, Wai-Chee Dimock, and Charles Hansford Adams). Valued today by such critics for his nuanced analyses of jurisprudential themes and questions of justice in the early American Republic, Cooper was potentially of great utility to reformers in his own day for the critical and popular success of his fiction. In Livingston’s words, Cooper could “impress most forcibly” on the minds of his readers the “truths” he “wish[ed] to inculcate,” thus making popular fiction — as we might theorize today — a sort of polyvocal laboratory in which various positions both for and against capital punishment could be imagined and experimented with by the novelist, precisely because no one would literally swing if the law in literature (unlike the law in reality) got it wrong.

Such overt theorizing, of course, was beside Livingston’s point; nonetheless, his remarks rely on similar assumptions about literature’s powerful role in effecting social and political change. His point was a more practical one, and the “task” he proposed to Cooper was

that of exemplifying (in a work written expressly with that view) the evils of capital punishment. One of the most prominent among them (its irremediable nature) seems to me to offer the finest field for a display of your powers in describing the effects of an erroneous judgment founded on false or mistaken testimony — the unavailing efforts of conscious innocence; its uncredited association, its despair; the remorse of the mistaken jurors and judge when the falsity of the charge is discovered too late for redress; the chain of circumstances by which guilt was presumed or the motives for the perjury by which it was asserted, in your hand, might be worked up into a picture that would cause the hardiest advocate for capital punishment to pause in his desire to inflict it, and I will answer for it, would not disgrace the master hand that drew it. (175)

In his proposal, Livingston outlined a veritable formula for a politico-legal thriller, a commonplace of today’s ever-so-popular crime and mystery genre (recent novels by John Grisham, Scott Turow, Barry Siegel, and Earnest J. Gaines come to mind). A conventional model in late twentieth-century literature, the formula first emerged as a popular literary form in the mid-nineteenth century when a number of novels were structured in some way around a capital trial and involved one or more of the elements Livingston enumerated in his letter. ⁴The Spy, particularly with the race against the clock to prevent Henry Wharton’s unjust execution serving as the work’s dramatic dénouement, is an early example of such as novel, but Cooper’s final novel drew more directly from such a formula. The Ways of the Hour is, in fact, as the back cover of a recent reprint advertises, “perhaps the first novel to revolve almost entirely about a courtroom murder trial.” ⁵

There is no record of Cooper ever replying directly to Livingston’s letter, but The Ways of the Hour reads as though it were a belated response. Indeed, with its depiction of misleading circumstances, both mistaken and perjured testimony, and the actual innocence of Mary Monson — the novel’s beautiful, mysterious heroine — Cooper utilizes many of the elements Livingston suggested for a work to be expressly written to exemplify “the evils of capital punishment.” An example of “conscious innocence” (notwithstanding her mental instability), Monson is convicted of first-degree murder and sentenced to death; her conviction is only overturned when one of her alleged murder victims is identified among the spectators in the courtroom audience immediately after her sentencing. Yet if Cooper did have Livingston’s letter in mind when writing about this near miscarriage of justice, he did not “work up” the kind of anti-gallows “picture” that Livingston desired. For while the novel dramatizes the conviction and near execution of an innocent person, the butt of its attack is not the institution of capital punishment but the trial-by-jury system, one of the chief “social evils that beset us,” as Cooper explains in the novel’s preface. What is more, The Ways of the Hour goes out of its way to make an nati-anti-gallows statement. Whereas The Spy propounds a general argument against the death penalty for any criminal (including a “hang-gallows spy”) in the exchange I examined between Sitgreaves and Lawton, The Ways of the Hour lampoons the anti-gallows movement in exchanges involving Tom Dunscomb, the novel’s putative spokesperson and voice of practical wisdom, and characters representative of the faddish and misguided “ways of the hour.”

The subject of death-penalty reform first comes up when Dunscomb and Timms, worlds apart in the ideologies of law but brought together as co-counselors in Monson’s defense, are discussing the jury in this particular case as well as the merits of the trial-by-jury system in general. When Dunscomb, a gentleman-lawyer of the old school, asks the newfangled Timms what he thinks of the jury in the Monson case, the following exchange ensues:

“It’s what I call reasonable, ‘Squire [Dunscomb]. There are two men on it who would not hang Cain, were he indicted for the murder of Abel.” “Quakers, of course?” “Not they. The time was when we were reduced to the ‘thee’s’ and the ‘thou’s’ for this sort of support; but philanthropy is abroad, sir, covering the land. Talk of the schoolmaster! Why, ‘Squire, a new philanthropical idee will go two feet to the schoolmaster’s one. Pro-nigger, anti-gallows, eternal peace, woman’s rights, the people’s power, and anything of that sort, sweeps like a tornado through the land. Get a juror who has just come into the anti-gallows notion, and I would defy the State to hang a body-snatcher who lived by murdering his subjects.” (192)

As the conversation develops, Dunscomb upholds the integrity of law and its traditional practice, while Timms disabuses his senior’s naivety and introduces a set of pragmatic strategies designed to manipulate jury sympathy and to speak to the jury’s biases. One of these strategies involves playing up the “anti-gallows notion,” which, along with other imprudent ideas, have swept across the country “like a tornado through the land.” Another strategy calls for the careful study of individual jurors. When Dunscomb reluctantly acknowledges the importance these days of scrutinizing jurors but then hopefully asks if that means “rely[ing] on one or two particularly intelligent and disinterested men” (193), Timms again corrects Dunscomb in explaining his successful tactics: “I rely on five or six particularly ignorant and heated partisans, on the contrary; men who have been reading about the abolishing of capital punishments, and who in gin’ral, because they’ve got hold of some notions that have been worn out as far back as the times of the Caesars, fancy themselves philosophers and the children of progress” (193).

Playfully ridiculing the anti-gallows movement in this scene, Cooper gives it more serious thought in a later dialogue involving Dunscomb and Mrs. Horton, one of the novel’s misguided “children of progress.” Again, the conversation concerns the jury in the Monson case and their likely opinions on the death penalty, and Mrs. Horton is quick to give hers: “For my part,” she says, “I wish all hanging was done away with. I can see no good that hanging can do a man” (321). Dunscomb politely concedes the point but claims that Mrs. Horton has mistaken the purpose of punishment. She responds by parroting an anti-gallows commonplace: “the country hangs a body to reform a body; and what good can that do when a body is dead?” (321). Again, Dunscomb concedes the point but argues this time that “society does not punish for the purposes of reformation; that is a very common blunder of superficial philanthropists” (322). When Mrs. Horton then asks “for what else should it punish?,” Cooper gives Dunscomb the final word on the subject: “For its own protection. To prevent others from committing murder” (322).

Clearly, the Dunscomb-Horton dialogue in The Ways of the Hour stands in sharp contrast to the Sitgreaves-Lawton dialogue in The Spy. Published thirty years apart, Cooper’s first and final popular novels register conflicting attitudes toward capital punishment, suggesting a shift in the author’s politics from a more liberal to a more conservative position on penal reform. Yet there is much more to be said about capital punishment as both topic and trope in Cooper’s work. For instance, in “The Eclipse” (likely composed in 1831) Cooper reflected with deep sympathy upon a condemned man, whose planned execution he witnessed in Otsego County in 1806 — the execution was stopped at the last minute through a stay issued by the governor. ⁶ Similarly, The Headsman (written a year after “The Eclipse” and two years after Livingston’s letter) takes the prejudice faced by a family born into the role of state Executioner as its principal subject, thus eliciting Cooper’s distaste for the institution of capital punishment — an anathema to republican forms of government. Moreover, whereas both The Spy and The Ways of the Hour involve or revolve around gallows scenes or the drama of a capital trial, the dramaturgy of the death penalty plays an important role in The Wing-and-the Wing (1842), at the center of which unfolds an elaborately staged military execution eerily anticipatory of the 1842 U.S.S. Somers hangings that elicited Cooper’s ire. Cooper, in fact, was virtually the only writer of consequence to condemn the Somers executions in their immediate aftermath (although Herman Melville would denounce them some seven years later in White-Jacket). But a discussion of Cooper and capital punishment in these contexts goes well beyond the scope of this presentation.

Works Cited

Adams, Charles Hansford. “The Guardian of the Law”: Authority and Identity in James Fenimore Cooper. University Park: Pennsylvania State University Press, 1990.
Banner, Stuart. The Death Penalty: An American History. Cambridge: Harvard University Press, 2002.
Barton, John Cyril. “The Antigallows Movement in Antebellum America.” REAL 22 (Y earbook of Research in English and American Literature), 2006: 145-178.
------. “William Gilmore Simms and the Literary Aesthetics of Crime and Capital Punishment.” Law & Literature 22:2 (2010): 220-243.
Cooper, James Fenimore. Correspondence of James Fenimore Cooper, Vol. 1. Ed. James Fenimore Cooper [author’s grandson]. New Haven: Yale University Press, 1922.
------. “The Eclipse.” Putnam’s Magazine (September 1869): 352-359.
------. The Spy: A Tale of the Neutral Ground. Ed. Wayne Franklin. New York: Penguin, 1997.
------. The Ways of the Hour. Boston: Houghton, Mifflin and Co. 1880.
------. The Ways of the Hour. Amsterdam, NL: Fredonia Books, 2002.
Dimock, Wai-Chee. Residues of Justice: Literature, Law, Philosophy. Berkeley: University of California Press, 1997.
Franklin, Wayne. James Fenimore Cooper: The Early Years. New Haven: Yale University Press, 2007.
Livingston, Edward. The Complete Works of Edward Livingston on Criminal Jurisprudence. Vol. 1. Reprint Series in Criminology, Law Enforcement, and Social Problems. New Jersey: Patterson Smith, 1968.
Mackey, Philip English. “Edward Livingston and the Origins of the Movement to Abolish Capital Punishment in America.” Louisiana History: The Journal of the Louisiana Historical Association 16:2 (1975): 145-155.
------. Hanging in the Balance: The Anti-Capital Punishment Movement in New York State, 1776-1861. New York: Garland Publishing, 1982.
Masur, Louis P. Rites of Execution: Capital Punishment and the Transformation of American Culture. New York: Oxford University Press, 1989.
Neal, John. Logan: A Family History. 2 Vols. Philadelphia: H.C. Carey and I. Lea, 1822.
------. Wandering Recollections of a Somewhat Busy Life: An Autobiography. Boston: Roberts Brothers, 1869.
O’Sullivan, John L. Report in Favor of The Abolition of the Punishment of Death by Law. New York: Arno Press, 1974.
Rosenberg, Bruce A. “James Fenimore Cooper’s The Spy and the Neutral Ground.” American Transcendental Quarterly 6:1 (1992): 5-16.
Stowe, The Annotated Uncle Tom’s Cabin. Ed. Henry Louis Gates, Jr., and Hollis Robins. New York: Norton, 2006.
Thomas, Brook. Cross-Examinations of Law and Literature. Cambridge: Cambridge University Press, 1988.

Notes

1. For an excellent overview of Livingston in relation to the movement to abolish the death penalty, see Mackey, “Edward Livingston and the Origins of the Movement to Abolish Capital Punishment in America.” See Masur and Banner for historical overviews of the death penalty in American culture.

2. For the history of anti-gallows penal reform in New York, see Mackey, Hanging in the Balance.

3. Wayne Franklin makes this point in his critical introduction to the novel: “In The Spy, the prevailing view of Harvey Birch is that he is André’s crass double. But in Cooper’s imagination, and at last [sic] in the book’s plot,” Franklin adds, “his moral parallel is not André but André’s three common American captors” (The Spy xxiv). See Rosenberg for an essay that sees Birch as André’s double and that reads Cooper’s treatment of André’s execution as criticism of Washington’s decision. Cooper, as Rosenberg notes, justifies André’s execution in Notions of the Americans, but vindicates André in The Spy: “Cooper was a patriot and has written (in Notions) of Washington’s justification in ordering the Major’s execution. But Cooper, as did thousands of Americans, greatly admired the Englishman. The Spy is the novelist’s partial vindication of André” (Rosenberg 15).

4. See Barton, “Simms and the Literary Aesthetics of Crime and Punishment,” for a discussion of this aesthetics in terms of Simms’ popular Border Romances.

5. See the back cover of the recent edition of Cooper’s The Ways of the Hour (Amsterdam, NL: Fredonia Books, 2002).

6. I thank Wayne Franklin for calling my attention to “The Eclipse” and to Cooper’s discussion in it of the Stephen Arnold case, “the first capital offence in Otsego County” (“The Eclipse” 355). See Franklin for a helpful discussion of the Arnold case.