In almost any history of the U. S. Navy, the bibliography will list as source material for the account of the War of 1812, a two- volume work published in 1839, written by one J. F. Cooper. Few people realize that through this history, Cooper gained recognition as one of the finest of amateur lawyers.
Best known for his fiction, Cooper wrote his History of the Navy of the United States of America after penning The Last of the Mohicans, The Deerslayer, and other Leatherstocking tales. He had used his experiences acquired before the mast in merchant ships and as a midshipman in the U. S. Navy for background for America’s first two novels of the sea, The Red Rover and The Pilot.
His 900-page history raised a furor in the press and in naval circles which culminated in a libel suit pressed by Cooper against the newspaper, The New York Commercial-Advertiser. Specifically, his 14-page analysis of the Battle of Lake Erie and a footnote about Oliver Hazard Perry incensed many Navy men and the public in general.
Cooper’s interest in the Navy started early. After three years at Yale, he went to sea to get the experience necessary to become a midshipman, since there was no naval academy at that time. When appointed in 1808, he first served in the gunboat Vesuvius. Later, he was with the naval party sent to Oswego, New York, to build a 16-gun brig for the defense of Lake Ontario. After a tour of duty with gunboats on Lake Champlain, Cooper was assigned to the Wasp, commanded by the soon- to-be-famous Captain Lawrence, in 1809. Then two things happened which were to change Cooper’s life.
The scare of war with England passed and naval appropriations were cut back. This made Cooper wonder about his future in the Navy. He realized that promotions would be slow. But he was further influenced, and ultimately beached, by his new bride. In May of 1811, his resignation was accepted.
Nevertheless, through the years, the successful novelist maintained close relations with many naval officers and cruised in warships whenever the opportunity arose. He also had access through his Navy friends to official records. Thus, his history was factual.
What the reviewers took exception to was the way he handled the Battle of Lake Erie. For years, a controversy had surged over the role of Captain Elliott of the Niagara in the battle. At first, Oliver Hazard Perry had given full credit to Elliott in his action report. Later the two quarrelled and charges and counter-charges were made. Elliott asked for a Court of Inquiry to clear himself. The court did. Then Perry preferred charges. No official action resulted. Although Perry died in 1819, the talk continued. The whole affair made the public, and many Navy people, irate. Oliver Hazard Perry was regarded as the hero of the Battle of Lake Erie, and that was that.
Cooper chose to use Perry’s report written soon after the action as the basis for his account. In the eyes of many reviewers, Cooper erred because he did not criticize Elliott for not bringing the Niagara into short range. Then there was the footnote. The public had taken to its bosom the heroic action of Perry, crossing from the sinking Lawrence to the Niagara in the height of the battle and continuing and winning the fight.
Cooper wrote in his footnote:
Popular opinion is too apt to confound distinctions in such matters, usually attaches the idea of more gallantry to the mere act of passing in a boat from one vessel to another, during the action, than in fighting on a vessel’s deck. This was the least of Perry’s merits. Captain Elliott was much longer in the same boat, and passed nearly through the whole line twice; and Mr. McGrath had left the Niagara for one of the other vessels, in quest of shot, before Captain Perry quitted the Lawrence. A boat, also, passed twice, if not three times, from the Caledonia to the Trippe in the height of the engagement, and others quite likely were sent from vessel to vessel. Capt. Perry’s merit was an indomitable resolution not to be conquered, and the manner in which he sought new modes of victory when the old ones failed him. The position taken by the Niagara at the close of the affair, the fact that he sought the best means of repairing his loss, and the motive with which he passed from vessel to vessel, constitute his claims to admiration. There was no doubt a personal risk in all the boats, but there was a personal risk everywhere on such an occasion.
Cooper took the reviewers’ criticisms until one particularly vitriolic review appeared in the Commercial-Advertiser. It was written by William A. Duer, former Columbia University president, whose nephew, Commander Alexander Slidell Mackenzie, was a brother-in-law of Matthew C. Perry, the brother of Oliver Hazard.
Cooper became angry at the personal attack by Duer and sued Colonel William Stone, publisher of the Commercial-Advertiser. After preliminary skirmishing, which the novelist won, they agreed finally that the suit should come to trial through extra-judicial legal proceedings. They concurred that no jury with sufficient legal knowledge could be gathered to decide the case. On Monday, 16 May 1842, the proceedings began in the Federal Courthouse in Manhattan.
Three prominent lawyers served on the bench as referees. The courtroom was packed. The New York press had given much coverage to the trial, most of it derisive and aimed at Cooper. Cooper opened with a two-hour speech. Then Stone’s attorney talked. On Tuesday, he continued and put several witnesses on the stand, among them prominent naval officers. The defense summed up on Thursday in a five-hour speech.
Late Thursday, Cooper talked for two hours and ended up with a six-hour discourse on Friday, 21 May. One eyewitness at the trial wrote in the North American Review, “We could not help but admire the self-possession, coolness, and vigor which the author . . . played the lawyer. Almost alone in his opinion, the tide of public sentiment against his theory of the battle, and the popular sympathy wholly with the received traditions of that memorable day, he stood collected, dignified, uncompromising. ...” Of his closing argument, one newspaper account said, “It was listened to with breathless attention, and at its conclusion, the crowded audience broke into a hearty peal of applause.”
The referees deliberated a month. They sent their findings to Hamilton Fish, who wrote to Cooper, “There were eight points, every one in your favor.” They ruled that, “The defendant is bound to make reparation and that this award shall be published at his own expense.” Stone published his retraction and paid Cooper the $250 he had sued for and another $50 for court costs.
The whole matter did not stop with the suit, however. The controversy swirled around Cooper for years. But he never back-tracked or changed his mind. He held to his analysis of Perry’s fighting spirit to the end.