“The Guardian of the Law”: George Washington’s Role in The Spy

Charles H. Adams (University of Virginia)

Presented at the 5ᵗʰ Cooper Seminar, James Fenimore Cooper: His Country and His Art at the State University of New York College at Oneonta, July, 1984.

Originally published in James Fenimore Cooper: His Country and His Art, Papers from the 1984 Conference at State University of New York College — Oneonta and Cooperstown. George A. Test, editor. (pp. 47-59).

Copyright © 1985 by State University of New York College at Oneonta.

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

IN chapter 14 of Home as Found (1838), during an afternoon cruise on Lake Otsego, Eve Effingham asks the “commodore” — a colorful keeper of local traditions, and one of Cooper’s many homespun philosopher figures — whether he knew the legendary Leatherstocking. The commodore replies,

“No, young lady, I’m sorry to say I never had the pleasure of looking at him even. He was a great man! They may talk of their Jeffersons and Jacksons, but I set down Washington and Natty Bumppo as the two really great men of my time” (227).

The commodore’s surprising association of the unlettered Leatherstocking with the “Doric” Washington (as Cooper calls him in Notions of the Americans) provides, I believe, a narrative moment in which a fundamental conflict in Cooper’s moral imagination is revealed. This conflict may be defined in a number of ways. A. N. Kaul, for instance, in The American Vision, sees in the commodore’s remark a succinct statement of Cooper’s, and America’s, uneasy relationship with prosperity. Washington and Natty are for Cooper “the representatives of the two extremes between which the American sensibility has attempted through the centuries to locate and identify its destiny: the principle of material advancement and that of ascetic detachment from all material interests” (115). The commodore’s remark might with equal justice be read as a reminder of other pairs of conflicting claims on Cooper and his America. Washington’s image in our national mythology as the wise and benevolent patriarch, contrasted with Leatherstocking’s crusty devotion to “what’s right,” suggests that their distinction turns on what Perry Miller called “the great struggle of the nineteenth century, the never-ending case of Head versus Heart,” (110) or is perhaps more broadly a symbol of the familiar debate between individual liberty and social order. I would like to suggest here, though, that while the commodore’s heroes may signify all these “struggles,” a look at Washington’s only appearance in Cooper’s fiction reveals that, for Natty’s creator, the difference between the two men is most saliently a matter of law.

There are two versions of the ideal man of law that dominate Cooper’s fiction, and Leatherstocking and Washington provide models of each. Natty, in all the novels in which he figures, embodies a conception of law that is at once intuitive and transcendental; the justice he seeks “’twixt man and man” is noumenal and antinomian. Washington, in contrast, is the American Moses; his place in the cultural memory suggests a law that is social and historical. As the chief of the Founding Fathers, he represents most clearly the web of rights and obligations that create order in a complex and expanding society. A consideration of the General’s role in The Spy (1821) confirms the usefulness of interpreting Washington’s place in Cooper’s mind in legal terms. But The Spy also forces us to recognize the dissimilarity between Cooper’s imagination in 1838, and the more subtle intelligence informing his earlier novels. For, if Washington is most valuably seen as a man of law in Cooper’s second novel, the law he represents there is much closer to Natty Bumppo’s law — much less an unequivocal expression of constitutionalism — than it would have been for the author of The American Democrat (1838). Natty’s law remains constant throughout his long life in fiction. His denial of Judge Temple’s authority in The Pioneers (1823) is absolute, and he is no less uncompromising in his rejection of historical law in The Deerslayer (1841). The conflict in Cooper’s imagination between Natty’s intuitive justice and institutional order deepens as Cooper’s career progresses, until the distance between them may be measured by the irreconcilable moral positions of virtually contemporary works like The Deerslayer and the Littlepage trilogy (1845-46). In The Spy, though, Cooper’s analysis of Washington and the historical justice he represents is much more ambivalent than either his celebration of it in The Redskins (1846) or The Chainbearer (1845), or his rejection of its pernicious influence in The Deerslayer.

Indeed, Cooper’s treatment of law in The Spy, like the action of the novel generally, occurs in a conflicted “neutral ground.” 1 In terms of law, the book takes place in a borderland where the prerogatives of intuitive justice meet the claims of institutional law. Out of the novel’s Westchester — a moral realm where, in the beginning of the book, the law is quite “extinct” — Cooper fashions a version of justice which blends the two legal alternatives that preoccupy him. More specifically, Cooper uses Washington’s character in The Spy as the focal point for an exploration of the common ground between public order and private identity. Washington’s role as a man of law provides the medium through which Cooper works to define a vision of order that comprehends both constitutionalism and the justice defined by the moral energy of individual character. In order to see how Cooper effects this synthesis — and, more importantly, in order to judge his success in light of what the novel shows us — we need first to examine the analysis he offers in The Spy of unredeemed formal law.

Cooper’s criticism of civil justice in The Spy focuses on the trial of Henry Wharton. When Wharton is arrested behind the American lines during his attempt to visit his family, he is brought before a court presided over by Judge Singleton, and is found guilty of spying. The accusation is of course false; as James Grossman says, the trial is “conducted with the nicest punctilio and the most scrupulous regard for the form of law, but the verdict is unjust” (28). Cooper’s purpose in his extended description of the course proceedings is to dramatize the reason for the law’s failure. The injustice ultimately concerns the “never-ending case of Head versus Heart” that absorbs Cooper and his contemporaries, but I believe that Cooper’s analysis is at once more sophisticated and specific than this general “case” suggests. The root of the injustice in Wharton’s trial is the flawed moral basis of the legal machinery — its reliance on an epistemology that is logically consistent but morally myopic. The law’s epistemological assumptions that Cooper identifies and criticizes in the trial scene directly reflect the axioms of antebellum legal theory.

A commonplace of the legal profession in Cooper’s day was that the law is a deductive science. While the law may have developed from particulars to universals — while it may have taken shape through the slow accretion over the centuries of countless specific decisions — legitimate resolution of legal questions requires a meticulous application of fixed precepts to facts. In Perry Miller’s words, “American lawyers” of Cooper’s age saw the law as “a ready-made body of principle which [was] so systematic an order of the mind that they could work from generalities down to cases instead of upward from miscellaneous data to universals” (160). Or, in the measured rhetoric of The United States Monthly Law Magazine,

Like other sciences, [law] is supposed to have first or fundamental principles, never modified, and the immovable basis on which the whole structure reposes; and also a series of dependent principles and rules, modified and subordinated by reason and circumstances, extending outward in unbroken connection to the remotest applications of the law (161).

Whether Cooper was directly aware of the lawyers’ faith in deduction as the avenue to truth cannot be known, although his deep friendship with Chancellor James Kent and his abiding interest in the law permits us to assume some familiarity with the profession’s premises. 2 In any event, his treatment of the law’s method in Wharton’s trial suggests that he understood the extent to which their pretensions were built on a false faith in the a priori, and an irresponsible neglect of the actual conditions of knowledge.

From the beginning of the trial, Cooper stresses the court’s rationalist bias. After the opening formalities, the president of the court reads the charge: “It is an accusation against you that, being an officer of the enemy, you passed the pickets of the American army at the White Plains, in disguise ... and have submitted yourself to the punishment of a spy” (344). Since the statement accurately describes Wharton’s actions, the prima facia case against him is “so plain,” says the narrator, that “escape seemed impossible” (344). As the events of the trial reveal, though, the case is “plain” only because the terms of the law make impossible any attempt to introduce complexity. The three elements of the crime — being an enemy soldier, crossing the lines, and wearing a disguise — are a priori categories which the law wilfully imposes on the world to organize it. The definition of the crime is the law’s rather flimsy tool for ordering the dense reality it confronts, though the order thus purchased is at the expense of anything like truth. The law’s method affords an illusion of empiricisn by insisting on factual support for its decisions. But this empiricisn is naive and false, since the law attends only to those facts that directly address the conditions of the charge. In Wharton’s case, there is a world of evidence apart from that selected by the court, and he tries to say as much in his defense: “That I passed your pickets in disguise is true; but — ” (344). In that “but,” and in the subsequent extensive efforts of his friends and family to elaborate his demurrer, lies the whole truth of the case, but the court hears only what its rationalist epistemology directs it to hear. The judges interrupt him to suggest that he retract his “confession,” as they call it, and mainly on the strength of it Wharton is condemned to hang.

Cooper illustrates the moral shortcomings of the American court by inviting us to compare its methods and verdict with those of a court as informal as it is just. Captain Jack Lawton’s hasty arraignment of the Skinners provides perhaps the most compelling argument for suggesting, as both John McWilliams and James Grossman have, that The Spy is a remarkably subversive book. Lawton’s vigilante operation executes swift and just punishment on a group of unquestionably despicable characters, in contrast to the “scrupulous” injustice of the Singleton court. After luring the mercenaries to a secluded spot, Lawton condemns them in strong legalistic language. “Now for justice,” he says: “we punish you for burning, robbing, and murdering. Seize them, my lads, and give each of them the law of Moses — forty, save one.” Lawton calls no witnesses to confirm their crimes and presents no evidence to convict them. Even so, his method of determining their guilt is solidly empirical. Although Lawton’s punishment seems harsh to us today, Cooper clearly considers it legitimate — intuitively right — because it gives effect to a moral sensibility shaped by contact with life in the neutral ground; Lawton’s experience among the ambiguities of a complex world enable him to understand facts in a context richer than that available to the rationalistic court. In Cooper’s words, his vision is not cluttered by “those constructions and interpretations of law that inflict punishment without the actual existence of crime (338). Against the formulaic and reductively verbal culture of the law, Lawton — like Wharton’s friends and relations who rise in vain to defend his integrity during the trial (cf. 347) — affirms an intuitive justice that rests on a firm knowledge of human nature.

The distinction between legal form and human reality embedded in the law’s conception of knowledge has its most serious effect on the personal identity of those who come into contact with institutional justice. The law causes a rupture between the legal self — a persona created by the law’s assumptions about man and his world that Cooper dramatizes in the trial — and a nonlegal identity — a conception of self grounded in a more comprehensive sense both of the possibilities of human knowledge, and of the sources of human motivation. As the example of Chief Judge Singleton shows, this antagonism between legal and nonlegal selves affects not just those who are ruled by the law, but those who must administer it as well.

Singleton is introduced to the reader as somehow apart from his subordinate judges on the bench. While his associates are portrayed as sternly impassive and are marked by a deep “intellectual reserve,” Singleton seems less “grave” — less comfortable with his professional identity (342). Indeed, he is described as a man leading a double life. On the outside, “his attire was strictly in conformity to the prescribed rules” of his position. His hair is “erect and military.” But other, less conspicuous aspects of his person suggest a deeper strain of “mercy.” His “benevolent countenance” wears a “melting and subdued expression,” promising compassion and humanity. Even more revealing is a certain restlessness about him: “his fingers trifled, with a kind of convulsive and unconscious motion, with a bit of crape that entwined the hilt of the sword on which his body partly declined. ... ” His nervousness indicates, as the narrator puts it, “the workings of an unquiet soul within,” a wealth of feelings and sympathies moving just below the surface of his martial “front.” The uneasy tension between his public and private selves creates in those who see him a strange mixture of “awe” and “pity” (342).

Singleton knows, intuitively, that Henry is guilty of nothing more than love for his family, but the law drives a wedge between his knowledge and his acts. His public self subscribes to the assumptions about truth imposed on him by his position, while his private identity alternately rebels against this artificial standard and tries to translate his knowledge into a moral language the law can accept, During Frances Wharton’s testimony, for example, he tried repeatedly, almost desperately, to get her to describe the circumstances of Henry’s visit in terms that might allow him to legitimately absolve the young man of legal guilt. He leads the girl insistently: “This was the first of his visits out of the uniform of his regiment?” “You wrote him — you urged him to visit, surely?” “Had he intercourse with any out of your own dwelling?” But when this last question draws from Frances the information that Henry met with Harvey Birch during his visit, Singleton’s legal persona is able to subdue his private sympathies. Even though, like the other evidence, it is only apparently damning, his “benevolent” eye clouds over with “honest indignation,” and he orders the sergeant-at-arms to “remove” the weeping witness.

In his book, The Masks of Society, the social philosopher J.F.A. Taylor points out that, “in law, the legal person is distinguished from the natural individual” (77-8). The law forces individuals to wear masks which indicate the role each plays in the law’s drama. “All agency before the law,” Taylor writes, is “the action not of men but of maskers.” Colonel Singleton is just such a masker. His natural identity is, in Taylor’s words, “submerged and neutralized” in the role he is forced to play by his legal capacity. He is in effect a man whose identity has been fragmented by the law, and who submits to this fragmentation even while recognizing its cost to his “unquiet soul.” His subscription to the law’s limited moral perspective restricts his ability to respond adequately to the world; he must conceal his awareness of life’s complexity behind a formulaic guise.

Indeed, masking — both figurative and literal — is a prevalent motif in The Spy. The numerous disguises donned and abandoned by the navel’s characters are, in one sense, so many concessions to the literary expectations of Cooper’s readers, for whom clever deceptions and dissemblings were a novelistic staple. But the convention also serves in The Spy as a powerful image for dramatizing the relationship between law and identity. Masks provide a symbol of the distinction that pervades the book between legal forms and human motivation. Judge Singleton’s figurative mask becomes, in the cases of Harvey Birch and Henry Wharton, real disguises that illustrate the difference between the integrity of private character, and the false “constructions” imposed by the law on behavior. In one of the novel’s earliest scenes, for instance, Henry Wharton, trapped behind enemy lines during his surreptitious visit to his family, sits in the main room of his father’s house, ludicrously disguised in a false beard and wig. In his legal identity, Wharton is a criminal. He is subject to arrest by the American powers simply for being who and where he is, regardless of intentions. In an effort to escape this institutional self. Wharton deliberately takes a mask. Unlike Singleton’s legal mask, Wharton’s literal disguise is a renunciation of his public identity in an effort to preserve the private ties to his loved ones. But ironically, because of the mysterious Harper’s presence, Wharton cannot unveil himself even in his own home. Since he dare not reveal his legally determined identity to a stranger, he is also prevented from revealing his private identity to his family. He becomes, as a consequence of the confusion of identity created by the law’s distortions, a “stranger in his own home” 3 — a man of no identity. Unable to comfort his anxious family, Wharton sits frozen in the alienation of anonymity.

Henry Wharton’s dilemma makes plain one of Cooper’s central criticisms of formal justice in The Spy. The masks that the law imposes on the world upset not merely personal identity, but the integrity of social bonds as well. Cooper’s objection to the law, here and in his next novel, The Pioneers (1823), is not, as too many critics assume, simply that the law represents the oppressive force of society against individual dignity. Rather, in Cooper’s early works at least, the law is guilty of disrupting both individual identity and the emotional and psychological bonds that make coherent the social structure on which personal identity depends. Henry Wharton’s deception represents not merely his alienation from himself, but the distance between himself and his family created by the law’s formalism. Singleton’s legal mask during the trial symbolizes not only his divided personality, but the effect of his masquerade on the coherence of the society over which his court presides. At the emotional climax of trial, Frances Wharton appeals directly to Singleton’s humanity, demanding, in effect, that he renounce his legal “front” and restore the link between his character and his actions. She appeals to him as a “father,” suggesting that he might act differently if his own son were in Henry’s place, and ends by pleading with him not to “tear a son from a parent” or a “brother from his sister” (352). But these private ties remain unacknowledged by Singleton’s persona, since they represent a significant threat to the coherence, and thus the authority, of the law’s formulation of self and society.

As Cooper’s career develops, he works with increasing deliberation to equate the law’s definition of the obligations of each to each, with the inherent structure of social relationships. Ultimately, in the Littlepage books for instance, the two are wedded; individual, social, and legal identity are virtually indistinguishable. 4 But even in The Spy, Cooper is not unequivocally committed to his thesis that the law undermines personal integrity and communal coherence. If he uses masking as a focus for his attack on formal justice, he also, and paradoxically, uses this motif to suggest the conditions for a redemption of the law’s legitimacy in the novel. To see how this is so, we must turn to one of the most interesting characters in the book, General George Washington.

As commander of the Continental forces, Washington is the chief military and political authority in the novel. He is also the book’s chief judicial authority: Singleton’s court is directly responsible to Washington, and the appeal from its decision goes to him as the ultimate American magistrate. As a judge, though, Washington is bound to decide the case according to the same flawed principles that guided the original tribunal. He is committed to the same epistemology, the same naive empiricism. Consequently, his terse response to Singleton’s verdict — “Approved, Gen. Washington” — is predictable.

Major Dunwoodie, the American hero of Cooper’s romance, tries to justify Washington’s “unbending justice” by arguing that it is “the general, not the man” (359) who acts so mercilessly. In his succinct analysis lies a central irony of the novel, since throughout most of the book Washington the man, in the person of Harper, is busily undoing all that Washington the public official attempts. As Harper, Washington orders Birch to infiltrate the American camp, free Henry, and escort him to the British lines. It is important to see that Washington’s behavior, so clearly subversive of legal authority, is motivated not by military or political considerations. Rather, he undermines his own judiciary because, as Harper, he was present at the Wharton home when Henry Wharton first arrived in disguise. He knows as a “man” what he is forbidden to know as a judge, that Wharton’s only crime is an indiscretion inspired by familial affection. Like Wharton that night, Washington adopts a mask that allows him to escape his legal self. In his private identity, he learns what he needs to know to do justice in Wharton’s case. He cannot, of course, “know,” in a legal sense, that Henry Wharton is not a spy, any more than could old Mr. Wharton or Dunwoodie when asked to “swear” to such knowledge in court (cf. 347). But his knowledge is of the same kind as theirs, and Lawton’s — empirical, contextual, inductive, intuitive.

As a “man,” then, Washington lives up to his title of “guardian of the law” (359). Where the legal institution fails, Washington acts privately to secure justice. In this sense, Washington’s character doubles Judge Singleton’s, though as a photographic negative doubles its print. If Washington’s identity is split along the same line that so effectively divides Singleton against himself, Henry Wharton’s better judge is rather liberated than trapped by the distinction. Washington’s use of a legal mask makes possible, for instance, his restoration of a measure of the coherence disrupted by the court’s action. By pursuing justice extra-legally, Washington is able to knit together again, however imperfectly, the emotional and psychological bonds he saw manifested in the Wharton home, and which Singleton’s court threatened to tear apart. In this sense, Washington’s unofficial title is ironically very appropriate; the law needs a strong “guardian” to protect it from itself, since if the law were permitted to do the sort of damage to society it threatens in the Wharton case, it would soon lose the legitimacy it needs to function at all.

If Washington is able to restore a measure of integrity to society, he is similarly able to repair sane of the damage done by the law to individual identity, as the case of Harvey Birch illustrates. Kay House has commented very perceptively on the distinction between Harvey’s inner and outer lives. “His exterior,” she writes in Cooper’s Americans, “is an exercise in shape-shifting.” His activities as a double spy for the Continental Army force him to become a master of deception, evasion, and surprise; his moral identification with the “neutral ground” of Westchester is reflected in his ephemeral “exterior” identity. But, as Professor House points out, while “Harvey’s lack of recognizable identity becomes a motif” in The Spy, “his essential being, which is unseen and inflexibly given to duty, remains stable” (209). With this in mind, we can appreciate that the cruelest “exterior” that Cooper makes Harvey Birch wear is legal in nature. For the law, Birch is an outlaw of the darkest cast. Despite his courageous service, an American court has condemned him to hang, and he risks being shot on sight by any American soldier. Birch is keenly aware of the injustice done him by the American authorities, and he is equally conscious that the root of the injustice is legal. “Such,” he sneers, are “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!” (376). Like the other characters I have discussed, Birch must willingly divide his identity to accommodate the false persona imposed on him by the law. Like Singleton most noticeably (and most ironically, since Singleton would quickly hang Birch if he could), Birch must accept the law’s version of himself while suppressing his “essential being.”

To secure justice, Birch appeals in his heart to Washington, who sanctions all of his activities, and who alone can vindicate him. In Birch’s case, as in Henry Wharton’s, Washington is the cynosure of both knowledge and justice. Washington is the “one,” as Birch repeatedly says, who truly “knows” him and can redeem his name:

“ ... who is there to do me justice? ... there is one it is who will, who must know me before I die! Oh! it is dreadful to die, and leave such a name behind me!” (203)

Indeed, Washington’s redemptive power is such that Birch several times associates it with the divine. “I am truly alone,” he says, “none know me but my God and Him“ (248). Once again, Washington is seen as the “guardian of the law.” As the supreme civil authority, Washington’s figurative omniscience insures a primum immobile for the legal system — a firm foundation for a flawed structure of knowledge. Inseparable from this is his agency as the “guardian” or Birch’s “essential being.” Whatever the American courts say about his character, Birch knows that his integrity and constancy of moral purpose are unquestioned by the authority that, both formally and through the moral energy of his personality, sanctions those courts.

Thus the real basis of law in the novel is not institutional, but personal. Washington serves as the “guardian of the law” by acting less like a judge than a lawgiver. At the end of the novel, he tells Birch that he can never “know” his spy in a public sense; “in private I can always be your friend” (453), Washington says, but as long as they both live the justice done to him must be “’twixt man and man.” In an earlier conversation with Major Dunwoodie, Birch suggests for us the significance of Washington’s reserve. Dunwoodie begins by repeating the verdict of the court that convicted Birch of spying. The rhythms of Dunwoodie’s language in making the charge recall the accusation against Henry Wharton.

“ ... [You are] charged with loitering near the continental army, to gain intelligence of its movements, and, by communicating them to the enemy, to enable him to frustrate the intentions of Washington.” “Will Washington say so, think you?” “Doubtless he would; even the justice of Washington condemns you.” “No, no, no,” cried the pedler ... ; “Washington can see beyond the hollow views of pretended patriots. Has he not risked all on the cast of a die? If a gallows is ready for me, was there not one for him also? No, no, no, no — Washington would never say, ‘Lead him to a gallows.’” (224-5)

Birch’s indignant reply has a literal meaning, of course. Washington has ordered Birch to do everything he has done, so any American “gallows” readied for Birch ought really to have Washington on it as well. But it also underscores the extent to which, in order to “see” clearly, a civil authority like Washington must escape the limits of an institutionally defined identity. His ability to penetrate pretense is directly related to his ability to divorce himself from the perceptual order imposed on him by the law. Because he can say, with Henry Wharton, “no” to formal justice, he can find the reality beneath its illusions. Washington’s refusal to “know” Birch publicly thus provides an appropriate closure for Cooper’s analysis of the law in The Spy· The public sphere is discredited by the events we have witnessed, and neither justice nor knowledge is to be expected in that quarter. Justice — which means, in this book and throughout Cooper’s fiction, the preservation of individual and communal identity — is a resolutely private act, a matter of the character of the “guardian” of the neutral ground of society.

In this way, The Spy establishes a pattern of ambivalence with regard to the law that persists to the end of Cooper’s career. His fictional treatments of law are marked by the association of an impulse to reject legal authority, with an effort to redeem the institution, to make it work in spite of itself. Most frequently, this ambivalence turns on the opposition of formal and charismatic justice. In The Pioneers, for instance — arguably Cooper’s most penetrating study of law — Cooper spends much of the novel exposing the law’s injustices, most explicitly in Natty Bumppo’s trial and punishment, and more subtly in the insinuations throughout the text that the Judge’s professed faith in the law may mask selfish motives. Cooper implies that the Judge’s defense of law is prompted, in part at least, by Temple’s determination to preserve a system that allowed him to acquire his land by means that are morally suspect, if legally unassailable. Toward the end of the book, though, the Judge begins acting very much as Washington does in The Spy. First, by sending Elizabeth to the jail with a bag of gold to pay Bumppo’s fine, he attempts to redeem privately the injustice he has done to the old man in his role as judge. Then, in the climactic chapter describing the events at Natty’s cave, Temple produces his will, a legal instrument that creates for Effingham an institutionally guaranteed justice that would not exist without the Judge’s personal will, his private decision to do right. Again, Cooper very deliberately attempts to redeem formal justice through the agency of a “guardian.”

But Cooper’s effort to redeem the law, in The Spy as in The Pioneers, is undermined by the logic of each narrative. In The Pioneers, Natty’s departure from Templeton represents his unwillingness to compromise with the law of the settlements. Just as when Elizabeth appears at the jail with the Judge’s gold, Natty insists on breaking out rather than buying his freedom, Leatherstocking in the final chapter turns his back on the new order created by Temple’s will. Similarly, in The Spy, Harvey Birch’s position at the novel’s conclusion illustrates the novel’s rejection of the compromise Cooper forges through Washington’s guardianship. Washington and his justice leave the spy with a ruined reputation and the small consolation of a piece of paper that will clear his name after his death. The only law that secures any justice for Birch, as for Natty Bumppo, is a higher one; the personal identity of each of these outcasts is defined, ultimately, by his obedience to a code that transcends the compromises of history. Birch’s selfless devotion to the abstract principles of the Revolution (McWilliams 54; House 204) raises him above the artificial distinction between public and private justice, and lends his character and his acts an integrity that Washington’s justice can only faintly imitate. Birch’s enduring alienation — from the law, from his country, and most significantly from himself — measures the failure of Cooper’s effort to legitimize civil authority by appointing for it a guardian.

In The Spy, then, law itself becomes a “neutral ground.” The effort to shape a law that is just creates a moral stage on which the central drama of Cooper’s moral imagination is enacted: the tension between the claims of personal identity, and need for legitimate authority. The tense meeting between Washington and Birch in the final section of the novel prefigures future dialogues between other avatars of Cooper’s two versions of the legal hero — the Pilot and Captain Griffith in The Pilot (1824), the Rover and Captain Wilder in The Red Rover (1828), Oakes and Bluewater in The Two Admirals (1842), and, of course,the commodore’s two heroes in Home as Found, with whom I began. The uneasy alliance between Washington — the figure who at once gives meaning to, and is defined by, a law that is institutional and historical — and Birch — the man whose identity is shaped by his adherence to the “stable and inflexible” higher law of principle — illustrates the impossibility of distinguishing Cooper’s abiding concern with the law from the deepest conflicts of his spirit.

Works Cited

  • Cooper, James Fenimore. Home as Found. New York, 1859.
  • ------, James Fenimore. The Spy. New York, 1859.
  • Grossman, James. James Fenimore Cooper. Stanford: Stanford University Press, 1949.
  • House, Kay. Cooper’s Americans. Columbus: Ohio State, 1965.
  • Kaul, A. N. The American Vision. New Haven, 1963; rpt. Westport, CN: Greenwood, 1980.
  • Miller, Perry. The Life of the Mind in America from the Revolution to the Civil War. New York: Harcourt, 1965.
  • Taylor, John F. A. The Masks of Society: An Inquiry into the Covenants of Civilization. New York: Appleton, 1966.


1 Cf. John McWilliams study of the importance of the “neutral ground” theme for Cooper’s politics in Political Justice in a Republic: James Fenimore Cooper’s America (Berkeley: University of California, 1972). While I am finally interested in a dimension of Cooper’s social philosophy rather different from that McWilliams treats, my work is, like that of all who write on Cooper’s political thought, indebted throughout to the insights of Professor McWilliams’ book.

2 See Brooks Thomas, “The Pioneers, or the Sources of American Legal History: A Critical Tale,” American Quarterly 36.1 (1984): 86-112, for a more extended discussion of Cooper’s relationship to contemporary legal debates.

3 Donald Ringe, James Fenimore Cooper (Boston: Twayne, 1962), p. 30. Ringe provides one of the few discussions of this curious scene, but from a rather different perspective from mine.

4 The Leatherstocking novels, obviously, require a qualification of this characterization of Cooper’s development, although there is a significant parallel between Cooper’s persistent definition of Natty’s personal identity in terms of a higher law, and his efforts in other works — and, significantly, in the “romance” narratives around which the Leatherstocking books are constructed — to define a congruence between law and identity in terms of social and historical structures. In both cases, identity is a function of law, though law is rather differently defined. I will have more to say about the transcendental relationship between law and self presently.