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Chapter 18: the Tribune and J. Fenimore Cooper.

  • The libel
  • -- Horace Greeley's narrative of the trial -- he reviews the opening speech of Mr. Cooper's counsel -- a striking illustration -- he addresses the jury -- Mr. Cooper sums up -- Horace Greeley comments on the speech of the novelist -- in doing so he perpetrates New libels -- the verdict -- Mr. Greeley's remarks on the same -- strikes a bee—line for New York -- a New suit -- an imaginary case.


A man is never so characteristic as when he sports. There was something in the warfare waged by the author of the Leatherstocking against the press, and particularly in his suit of the Tribune for libel, that appealed so strongly to Horace Greeley's sense of the [225] comic, that he seldom alluded to it without, apparently, falling into a paroxysm of mirth. Some of his most humorous passages were written in connection with what he called “the Cooperage of the Tribune.” To that affair, therefore, it is proper that a short chapter should be devoted, before pursuing further the History of the Tribune.

The matter alleged to be libellous appeared in the Tribune, Nov. 17th, 1841. The trial took place at Saratoga, Dec. 9th, 1842. Mr. Greeley defended the suit in person, and, on returning to New York, wrote a long and ludicrous account of the trial, which occupied eleven columns and a quarter in the Tribune of Dec. 12th. For that number of the paper there was such a demand, that the account of the trial was, soon after, re-published in a pamphlet, of which this chapter will be little more than a condensation.

The libel—such as it was—the reader may find lurking in the following epistle:

Mr. Fenimore Cooper and his libels.

Fonda, Nov. 17, 1841.
To the editor of the Tribune:—

The Circuit Court now sitting here is to be occupied chiefly with the legal griefs of Mr. Fenimore Cooper, who has determined to avenge himself upon the Press for having contributed by its criticisms to his waning popularity as a novelist.

The “handsome Mr. Effingham” has three cases of issue here, two of which are against Col. Webb, Editor of the Courier and Enquirer, and one against Mr. Weed, Editor of the Albany Evening Journal.

Mr. Weed not appearing on Monday, (the first day of court,) Cooper moved for judgment by default, as Mr. Weed's counsel had not arrived. Col. Webb, who on passing through Albany, called at Mr. Weed's house, and learned that his wife was seriously and his daughter dangerously ill, requested Mr. Sacia to state the facts to the Court, and ask a day's delay, Mr. Sacia made, at the same time, an appeal to Mr. Cooper's humanity. But that appeal, of course, was an unavailing one. The novelist pushed his advantage. The Court, however, ordered the cause to go over till the next day, with the understanding that the default should be entered then if Mr. Weed did not appear. Col. Webb then despatched a messenger to Mr. Weed with this information. The messenger returned with a letter from Mr. Weed, stating that his daughter lay very ill, and that he would not leave her while she was suffering or in danger. Mr. Cooper, therefore, immediately moved for his default. Mr. Sacia interposed again for time, but it was denied. A jury was empanelled [226] to assess Mr. Effingham's damages. The trial, of course, was ex-parte, Mr. Weed being absent and defenceless. Cooper's lawyer made a wordy, windy, abusive appeal for exemplary damages. The jury retired, under a strong charge against Mr. Weed from Judge Willard, and after remaining in their room till twelve o'clock at night, sealed a verdict for $400 for Mr. Effingham, which was delivered to the Court this morning.

This meagre verdict, under the circumstances, is a severe and mortifying rebuke to Cooper, who had everything his own way.

The value of Mr. Cooper's character, therefore, has been judicially ascertained.

It is worth exactly four hundred dollars.

Col. Webb's trial comes on this afternoon; his counsel, C. L. Jordan, Esq., having just arrived in the up train. Cooper will be blown sky high. This experiment upon the Editor of the Courier and Enquirer, I predict, will cure the “handsome Mr. Effingham” of his monomania for libels.’


The rest of the story shall be given here in Mr. Greeley's own words. He begins the narrative thus:—

The responsible Editor of the Tribune returned yesterday morning from a week's journey to and sojourn in the County of Saratoga, having been thereto urgently persuaded by a Supreme Court writ, requiring him to answer to the declaration of Mr. J. Fenimore Cooper in an action for Libel.

This suit was originally to have been tried at the May Circuit at Ballston; but neither Fenimore (who was then engaged in the Coopering of Col. Stone of the Commercial) nor we had time to attend to it—so it went over to this term, which opened at Ballston Spa on Monday, Dec. 5th. We arrived on the ground at eleven o'clock of that day, and found the plaintiff and his lawyers ready for us, our case No. 10 on the calendar, and of course a good prospect of an early trial; but an important case involving Water-rights came in ahead of us (No. 8) taking two days, and it was half-past 10, A. M., of Friday, before ours was reached—very fortunately for us, as we had no lawyer, had never talked over the case with one, or made any preparation whatever, save in thought, and had not even found time to read the papers pertaining to it till we arrived at Ballston.

The delay in reaching the case gave us time for all; and that we did not employ lawyers to aid in our conduct or defense proceeded from no want of confidence in or deference to the many eminent members of the Bar there in attendance, beside Mr. Cooper's three able counsel, but simply from the fact that we wished to present to the Court some considerations which we thought had been overlooked or overborne in the recent Trials of the Press for Libel before our Supreme and Circuit Courts, and which, since they appealed more directly and forcibly to the experience of Editors than of Lawyers, we presumed [227] an ordinary editor might present as plainly and fully as an able lawyer. We wished to place before the Court and the country those views which we understand the Press to maintain with us of its own position, duties, responsibilities, and rights, as affected by the practical construction given of late years in this State to the Law of Libel, and its application to editors and journals. Understanding that we could not appear both in person and by counsel, we chose the former; though on trial we found our opponent was permitted to do what we supposed we could not. So much by way of explanation to the many able and worthy lawyers in attendance on the Circuit, from whom we received every kindness, who would doubtless have aided us most cheerfully if we had required it, and would have conducted our case far more skillfully than we either expected or cared to do. We had not appeared there to be saved from a verdict by any nice technicality or legal subtlety.

The case was opened to the Court and Jury by Richard Cooper, nephew and attorney of the plaintiff, in a speech of decided pertinence and force. * * * Mr. R. Cooper has had much experience in this class of cases, and is a young man of considerable talent. His manner is the only fault about him, being too elaborate and pompous, and his diction too bombastic to produce the best effect on an unsophisticated auditory. If he will only contrive to correct this, he will yet make a figure at the Bar—or rather, he will make less figure and do more execution. The force of his speech was marred by Fenimore's continually interrupting to dictate and suggest to him ideas when he would have done much better if left alone. For instance: Fenimore instructed him to say, that our letter from Fonda above recited purported to be from the “correspondent of the Tribune,” and thence to draw and press on the Jury the inference that the letter was written by some of our own corps, whom we had sent to Fonda to report these trials. This inference we were obliged to repel in our reply, by showing that the article plainly read “correspondence of the Tribune,” just as when a fire, a storm, or some other notable event occurs in any part of the country or world, and a friend who happens to be there, sits down and dispatches us a letter by the first mail to give us early advices, though he has no connection with us but by subscription and good will, and perhaps never wrote a line to us in his life till now.

...

The next step in Mr. R. Cooper's opening: We had, to the Declaration against us, pleaded the General Issue—that is Not Guilty of libelling Mr. Cooper, at the same time fully admitting that we had published all that he called our libels on him, and desiring to put in issue only the fact of their being or not being libels, and have the verdict turn on that issue. But Mr. Cooper told the Jury (and we found, to our cost, that this was New York Supreme and Circuit Court law) that by pleading Not Guilty we had legally admitted ourselves to be Guilty—that all that was necessary for the plaintiff under that plea was to put in our admission of publication, and then the Jury [228] had nothing to do but to assess the plaintiff's damages under the direction of the Court. In short, we were made to understand that there was no way under Heaven—we beg pardon; under New York Supreme Court Law—in which the editor of a newspaper could plead to an action for libel that the matter charged upon him as libelous was not in its nature or intent a libel, but simply a statement, according to the best of his knowledge and belief, of some notorious and every way public transaction, or his own honest comments thereon; and ask the Jury to decide whether the plaintiff's averment or his answers thereto be the truth! To illustrate the beauties of “the perfection of human reason” —always intending New York Circuit and Supreme Court reason—on this subject, and to show the perfect soundness and pertinence of Mr. Cooper's logic according to the decisions of these Courts, we will give an example .

Our police reporter, say this evening, shall bring in on his chronicle of daily occurrences the following:

“A hatchet-faced chap, with mouse-colored whiskers, who gave the name of John Smith, was brought in by a watchman who found him lying drunk in the gutter. After a suitable admonition from the Justice, and on payment of the usual fine, he was discharged.”

Now, our reporter, who, no more than we, ever before heard of this John Smith, is only ambitious to do his duty correctly and thoroughly, to make his description accurate and graphic, and perhaps to protect better men who rejoice in the cognomen of John Smith, from being confounded with this one in the popular rumor of his misadventure. If the paragraph should come under our notice, we should probably strike it out altogether, as relating to a subject of no public moment, and likely to crowd out better matter. But we do not see it, and in it goes: Well: John Smith, who “ acknowledges the corn” as to being accidentally drunk and getting into the watch-house, is not willing to rest under the imputation of being hatched-faced and having mouse-colored whiskers, retains Mr. Richard Cooper—for he could not do better—and commences an action for libel against us. We take the best legal advice, and are told that we must demur to the Declaration—that is, go before a court without jury, where no facts can be shown, and maintain that the matter charged as uttered by us is not libelous. But Mr. R. Cooper meets us there and says justly:

How is the court to decide without evidence that this matter is not libelous? If it was written and inserted for the express purpose of ridiculing and bringing into contempt my client, it clearly is libelous. And then as to damages: My client is neither rich nor a great man, but his character, in his own circle, is both dear and valuable to him. We shall be able to show on trial that he was on the point of contracting marriage with the daughter of the keeper of the most fashionable and lucrative oyster-cellar in Orange street, whose nerves were so shocked at the idea of her intended having a “hatchet face and mouse-colored whiskers,” that she fainted outright on reading the paragraph [229] (copied from your paper into the next day's “Sun” ), and was not brought to until a whole bucket of oysters which she had just opened had been poured over her in a hurried mistake for water. Since then, she has frequent relapses and shuddering, especially when my client's name is mentioned, and utterly refuses to see or speak of him. The match is dead broke, and my client loses thereby a capital home, where victuals are more plentiful and the supply more steady than it has been his fortune to find them for the last year or two. He loses, with all this, a prospective interest in the concern, and is left utterly without business or means of support except this suit. Besides, how can you tell, in the absence of all testimony, that the editor was not paid to insert this villanous description of my client, by some envious rival for the affections of the oyster—maid, who calculates both to gratify his spite and advance his lately hopeless wooing? In this case, it certainly is a libel. We affirm this to be the case, and you are bound to presume that it is. The demurrer must be overruled.

And so it must be. No judge could decide otherwise.

Now we are thrown back upon a dilemma: Either we must plead Justfication, in which case we admit that our publication was on its face a libel; and now, woe to us if we cannot prove Mr. Cooper's client's face as sharp, and his whiskers of the precise color as stated. A shade more or less ruins us. For, be it known, by attempting a Justification we have not merely admitted our offense to be a libel, but our plea is an aggravation of the libel, and entitles the plaintiff to recover higher and more exemplary damages. But we have just one chance more: to plead the general issue—to wit, that we did not libel the said John Smith, and go into court prepared to show that we had no malice toward or intent to injure Mr. Smith, never heard of him before, and have done all we knew how to make him reparation—in short, that we have done and intended nothing which brings us fairly within the iron grasp of the law of libel. But here again, while trying our best to get in somehow a plea of Not Guilty, we have actually pleaded Guilty!—so says the Supreme Court law of New York—our admitted publication (no matter of what) concerning John Smith proves irresistibly that we have libeled him—we are not entitled in any way whatever to go to the Jury with evidence tending to show that our publication is not a libel—or, in overthrow of the legal presumption of malice, to show that there actually was none. All that we possibly can offer must be taken into account merely in mitigation of damages. Our hide is on the fence, you see, any how.

But to return to Richard's argument at Ballston. He put very strongly against us the fact that our Fonda correspondent (see Declaration above) considered Fenimore's verdict there a meagre one. “ Gentlemen of the jury,” said he,

see how these editors rejoice and exult when they get off with so light a verdict as $400! They consider it a triumph over the law and the defendant They don't consider that amount anything. If you moan to vindicate the laws and the character of my client, you see you must give much more than this.

[230] This was a good point, but not quite fair. The exultation over the “meagre verdict” was expressly in view of the fact, that the cause was undefended—that Fenimore and his counsel had it all their own way, evidence, argument, charge, and all. Still, Richard had a good chance here to appeal for a large verdict, and he did it well.

On one other point Richard talked more like a cheap lawyer and less like a—like what we had expected of him—than through the general course of his argument. In his pleadings, he had set forth Horace Greeley and Thomas Mc-Elrath as Editors and Proprietors of the Tribune, and we readily enough admitted whatever he chose to assert about us except the essential thing in dispute between us. Well, on the strength of this he puts it to the Court and Jury, that Thomas McElrath is one of the Editors of the Tribune, and that be, being (having been) a lawyer, would have been in Court to defend this suit, if there was any valid defense to be made. This, of course, went very hard against us; and it was to no purpose that we informed him that Thomas McElrath, though legally implicated in it, had nothing to do practically with this matter—(all which he knew very well long before)—and that the other defendant is the man who does whatever libeling is done in the Tribune, and holds himself everywhere responsible for it. We presume there is not much doubt even so far off as Cooperstown as to who edits the Tribune, and who wrote the editorial about the Fonda business. (In point of fact, the real and palpable defendant in this suit never even conversed with his partner a quarter of an hour altogether about this subject, considering it entirely his own job; and the plaintiff himself, in conversation with Mr. McElrath, in the presence of his attorney, had fully exonerated Mr. M. from anything more than legal liability.) But Richard was on his legs as a lawyer—he pointed to the seal on his bond—and therefore insisted that Thomas McElrath was art and part in the alleged libel, not only legally, but actually, and would have been present to respond to it if he had deemed it susceptible of defense! As a lawyer, we suppose this was right; but, as an Editor and a man, we could not have done it.

“Richard” gave way, and “ Horace” addressed the jury in a speech of fifty minutes, which need not be inserted here, because all its leading ideas are contained in the narrative. It was a convincing argument, so far as the reason and justice of the case were concerned; and, in any court where reason and justice bore sway, would have gained the case. ‘Should you find, gentleman,’ concluded Mr. Greeley,

that I had no right to express an opinion as to the honor and magnanimity of Mr. Cooper, in pushing his case to a trial as related, you will of course compel me to pay whatever damage has been done to his character by such expression, followed and accompanied [231] by his own statement of the whole matter. I will not predict your estimate, gentlemen, but I may express my profound conviction that no opinion which Mr. Cooper might choose to express of any act of my life—no construction he could put upon my conduct or motives, could possibly damage me to an extent which would entitle or incline me to ask damages at your hands.

But, gentlemen, you are bound to consider—you cannot refuse to consider, that if you condemn me to pay any sum whatever for this expression of my opinions on his conduct, you thereby seal your own lips, with those of your neighbors and countrymen, against any such expression in this or any other case; you will no longer have a right to censure the rich man who harasses his poor neighbor with vexatious lawsuits merely to oppress and ruin him, but will be liable by your own verdict to prosecution and damages whenever you shall feel constrained to condemn what appears to you injustice, oppression, or littleness, no matter how flagrant the case may be.

Gentlemen of the Jury, my character, my reputation are in your hands. I think I may say that I commit them to your keeping untarnished; I will not doubt that you will return them to me unsullied. I ask of you no mercy, but justice. I have not sought this issue; but neither have I feared or shunned it. Should you render the verdict against me, I shall deplore far more than any pecuniary consequence the stigma of libeler which your verdict would tend to cast upon me—an imputation which I was never, till now, called to repel before a jury of my countrymen. But, gentlemen, feeling no consciousness of deserving such a stigma—feeling, at this moment, as ever, a profound conviction that I do not deserve it, I shall yet be consoled by the reflection that many nobler and worthier than I have suffered far more than any judgment here could inflict on me for the Rights of Free Speech and Opinion—the right of rebuking oppression and meanness in the language of manly sincerity and honest feeling. By their example, may I still be upheld and strengthened. Gentlemen, I fearlessly await your decision!

Mr. Greeley resumes his narrative:

Mr. J. Fenimore Cooper summed up in person the cause for the prosecution. He commenced by giving at length the reasons which had induced him to bring this suit in Saratoga The last and only one that made any impression [232] on our mind was this, that he had heard a great deal of good of the people of Saratoga, and wished to form a better acquaintance with them. (Of course this desire was very flattering; but we hope the Saratogans won't feel too proud to speak to common folds hereafter, for we want liberty to go again next summer.)

Mr. Cooper now walked into the Public Press and its alleged abuses, arrogant pretensions, its interference in this case, probable motives, etc., but the public are already aware of his sentiments respecting the Press, and would not thank us to recapitulate them. His stories of editors publishing truth and falsehood with equal relish may have foundation in individual cases, but certainly none in general practice. No class of men spend a tenth part so much time or money in endeavoring to procure the earliest and best information from all quarters, as it is their duty to do. Occasionally an erroneous or utterly false statement gets into print and is copied—for editors cannot intuitively separate all truth from falsehood—but the evil arises mainly from the circumstance that others than editors are often the spectators of events demanding publicity; since we cannot tell where the next man is to be killed, or the next storm rage, or the next important cause to be tried: if we had the power of prophecy, it would then be time to invent some steam-lightning balloon, and have a reporter ready on the spot the moment before any notable event should occur. This would do it; but now we luckless editors must too often depend on the observation and reports of those who are less observant, less careful, possibly in some cases less sagacious, than those of our own tribe. Our limitations are not unlike those of Mr. Weller, Junior, as stated while under cross-examination in the case of Bardell vs. Pickwick:

“Yes, I have a pair of eyes,” replied Sam, “ and that's just it. If they was a pair of patent double million magnifyina gas microscopes of hextra power, p'raps I might be able to see through a flight of stairs and a deal door, but beina only eyes you see, my wision's limited.”

Fenimore proceeded to consider our defense, which he used up in five minutes, by pronouncing it no defence at all! It had nothing to do with the matter in issue whatever, and we must be very green if we meant to be serious in offering it. (We were rather green in Supreme Court libel law, that's a fact; but we were put to school soon after, and have already run up quite a little bill for tuition, which is one sign of progress.) His Honor the Judge would tell the Jury that our law was no law whatever, or had nothing to do with this case. (So he did—Cooper was right here.) In short, our speech could not have been meant to apply to this case, but was probably the scrapings of our editorial closet—mere odds and ends—what the editors call “ Balaam.” Here followed a historical digression, concerning what editors call “Balaam,” which, as it was intended to illustrate the irrelevancy of our whole argument, we thought very pertinent. It wound up with what was meant for a, joke about Balaam and his ass, which of course was a good thing; but its [233] point wholly escaped us, and we believe the auditors were equally unfortunate. However, the wag himself appreciated and enjoyed it.

There were several other jokes (we suppose they were) uttered in the course of this lively speech, but we didn't get into their merits, (probably not being in the best humor for joking;) but one we remembered because it was really good, and came down to our comprehension. Fenimore was replying to our remarks about the “ handsome Mr. Effingham,” (see speech,) when he observed that if we should sue him for libel in “pronouncing us not handsome, he should not plead the General Issue, but Justify.” That was a neat hit, and well planted. We can tell him, however, that if the Court should rule as hard against him as it does against editors when they undertake to justify, he would find it difficult to get in the testimony to establish a matter even so plain as our plainness.

Fenimore now took up the Fonda libel suit, and fought the whole battle over again, from beginning to end. Now we had scarcely touched on this, supposing that, since we did not justify, we could only refer to the statements contained in the publications put in issue between us, and that the Judge would check us, if we went beyond these. Fenimore, however, had no trouble; said whatever he pleased—much of which would have been very pertinent if he, instead of we, had been on trial—showed that he did not believe anything of Mr. Weed's family being sick at the time of the Fonda Trials, why he did not, &c., &c. We thought he might have reserved all this till we got down to dinner, which everybody was now hungry for, and where it would have been more in place than addressed to the Jury.

Knowing what we positively did and do of the severe illness of the wife of Mr. Weed, and the dangerous state of his eldest daughter at the time of the Fonda Trials in question—regarding them as we do—the jokes attempted to be cut by Fenimore over their condition—his talk of the story growing up from one girl to the mother and three or four daughters—his fun about their probably having the Asiatic cholera among them or some other contagious disease, &c., &c., however it may have sounded to others, did seem to us rather inhu—— Hallo there! we had like to have put our foot right into it again, after all our tuition. We mean to say, considering that, just the day before, Mr. Weed had been choked by his counsel into surrendering at discretion to Fenimore, being assured (correctly) by said counsel that, as the law is now expounded and administered by the Supreme Court, he had no earthly choice but to bow his neck to the yoke, pay all that might be claimed of him and publish whatever humiliations should be required, or else prepare to be immediately ruined by the suits which Fenimore and Richard had already commenced or were getting ready for him–considering all this, and how much Mr. Weed has paid and must pay towards his subsistence—how keenly W. has had to smart for his speaking his mind of him—we did not think that Fenimore's talk at this time and place of Weed's family, and of Weed himself as [234] a man so paltry that he would pretend to sickness in his family as an excuse to keep away from Court, and resort to trick after trick to put off his case for a day or two—it seemed to us, considering the present relations of the parties, most ungen——There we go again! We mean to say that the whole of this part of Mr. Cooper's speech grated upon our feelings rather harshly. We believe that isn't a libel. (This talking with a gag in the mouth is rather awkward at first, but we'll get the hang of it in time. Have patience with us, Fenimore on one side and the Public on the other, till we nick it.)

...

Personally, Fenimore treated us pretty well on this trial—let us thank him for that—and so much the more that he did it quite at the expense of his consistency and his logic. For, after stating plumply that he considered us the best of the whole Press-gang he had been fighting with, he yet went on to argue that all we had done and attempted with the intent of rendering him strict justice, had been in aggravation of our original trespass! Yes, there he stood, saying one moment that we were, on the whole, rather a clever fellow, and every other arguing that we had done nothing but to injure him wantonly and maliciously at first, and then all in our power to aggravate that injury! (What a set the rest of us must be!)

And here is where he hit us hard for the first time. He had talked over an hour without gaining, as we could perceive, an inch of ground. When his compliment was put-in, we supposed he was going on to say he was satisfied with our explanation of the matter and our intentions to do him justice, and would now throw up the case. But instead of this he took a sheer the other way, and came down upon us with the assertion that our publishing his statement of the Fonda business with our comments, was an aggravation of our original offense—was in effect adding insult to injury!

...

There was a little point made by the prosecution which seemed to us too little. Our Fonda letter had averred that Cooper had three libel-suits coming off there at that Circuit—two against Webb, one against Weed. Richard and Fenimore argued that this was a lie—the one against Weed was all. The nicety of the distinction here taken will be appreciated when we explain that the suits against Webb were indictments for libels on J. Fenimore Cooper!

We supposed that Fenimore would pile up the law against us, but were disappointed. He merely cited the last case decided against an Editor by the Supreme Court of this State. Of course, it was very fierce against Editors and their libels, but did not strike us as at all meeting the issue we had raised, or covering the grounds on which this case ought to have been decided.

Fenimore closed very effectively with an appeal for his character, and a picture of the sufferings of his wife and family—his grown — up daughters often suffused in tears by these attacks on their father. Some said this was mawkish, but we consider it good, and think it told. We have a different theory as [235] to what the girls were crying for, but we won't state it lest another dose of Supreme Court law be administered to us. ( “ Not any more at present, I thank ye” ? )

Fenimore closed something before two o'clock, having spoken over an hour and a half. If he had not wasted so much time in promising to make but a short speech and to close directly, he could have got through considerably sooner. Then he did wrong to Richard by continually recurring to and fulsome eulogiums on the argument of “my learned kinsman.” Richard had made a good speech and an effective one—no mistake about it—and Fenimore must mar it first by needless provoking interruptions, and then by praises which, though deserved, were horribly out of place and out of taste. Fenimore, my friend, you and I had better abandon the Bar—we are not likely either of us to cut much of a figure there. Let us quit before we make ourselves ridiculous.

His Honor Judge Willard occupied a brief half hour in charging the Jury. We could not decently appear occupied in taking down this Charge, and no one else did it—so we must speak of it with great circumspection. That he would go dead against us on the Law of the case we knew right well, from his decisions and charges on similar trials before. Not having his Law points before us, we shall not venture to speak of them. Suffice it to say, that they were New York Supreme and Circuit Court Law—no better and no worse than he has measured off to several editorial culprits before us. They are the settled maxims of the Supreme Court of this State in regard to the law of libel as applied to Editors and Newspapers, and we must have been a goose to expect any better than had been served out to our betters. The Judge was hardly, if at all, at liberty to know or tolerate any other.

...

But we have filled our paper, and must close. The Judge charged very hard against us on the facts of the case, as calling for a pretty sizable verdict—our legal guilt had of course been settled long before in the Supreme Court.

When the Charge commenced, we would not have given Fenimore the first red cent for his verdict; when it closed, we understood that we were booked to suffer some. If the Jury had returned a verdict in our favor, the Judge must have been constrained by his charge to set it aside, as contrary to law.

The Jury retired about half-past 2, and the rest of us went to dinner. The Jury were hungry too, and did not stay out long. On comparing notes, there were seven of them for a verdict of $100, two for $200, and three for $500. They added these sums up-total $2,600—divided by 12, and the dividend was a little over $200; so they called it $200 damages and six cents costs, which of course carries full costs against us. We went back from dinner, took the verdict in all meekness, took a sleigh, and struck a bee-line for New York. [236]

Thus for the Tribune the rub-a-dub is over; the adze we trust laid aside the staves all in their places; the hoops tightly driven; and the heading not particularly out of order. Nothing remains but to pay piper, or cooper, or whatever; and that shall be promptly attended to.

Yes, Fenimore shall have his $200. To be sure, we don't exactly see how we came to owe him that sum; but he has won it, and shall be paid. “ The court awards it, and the law doth give it.” We should like to meet him and have a social chat over the whole business, now it is over. There has been a good deal of fun in it, come to look back; and if he has as little ill — will toward us as we bear to him, there shall never be another hard thought between us. We don't blame him a bit for the whole matter; he thought we injured him, sued us, and got his pay. Since the Jury have cut down his little bill from $3,000 to $200, we won't higgle a bit about the balance, but pay it on sight. In fact, we rather like the idea of being so munificent a patron (for our means) of American Literature; and are glad to do anything for one of the most creditable (of old) of our authors, who are now generally reduced to any shift for a living by that grand National rascality and greater folly, the denial of International Copyright. ( “My pensive public,” don't flatter yourself that we are to be rendered mealy-mouthed toward you by our buffeting. We shall put it to your iniquities just as straight as a loon's leg, calling a spade a spade, and not an oblong garden implement, until the judicial construction of the law of libel shall take another hitch, and its penalties be invoked to shield communities as well as individuals from censure for their transgressions. Till then, keep a bright look out!)

And Richard, too, shall have his share of “ the spoils of victory.” He has earned them fairly, and, in the main, like a gentleman—making us no needless trouble, and we presume no needless expense. All was fair and above board, save some little specks in his opening of the case, which we noticed some hours ago, and have long since forgiven. For the rest, we rather like what we have seen of him; and if anybody has any law business in Otsego, or any libel suits to prosecute anywhere, we heartily recommend Richard to do the work, warranting the client to be handsomely taken in anti done for throughout. (There's a puff, now, a man may be proud of. We don't give such every day out of pure kindness. It was Fenimore, we believe, that said on the trial, that our word went a great way in this country.) Can we say a good word for you, gallant foeman? We'll praise any thing of yours we have read except the Monikins.

But sadder thoughts rush in on us in closing. Our case is well enough, or of no moment; but we cannot resist the conviction that by the result of these Cooper libel-suits, and by the Judicial constructions which produce that result, the Liberty of the Press—its proper influence and respectability, its power to rebuke wrong and to exert a salutary influence upon the Public Morals is fearfully impaired. We do not see how any paper can exist, and speak [237] and act worthily and usefully in this State, without subjecting itself daily to innumerable, unjust and crushing prosecutions, and indictments for libel. Even if Juries could have nerves of iron to say and do what they really think right between man and man, the costs of such prosecution would ruin any journal. But the Liberty of the Press has often been compelled to appeal from the bench to the people. It will do so now, and we will not doubt with success. Let not, then, the wrong-doer who is cunning enough to keep the blind side of the law, the swindling banker who has spirited away the means of the widow and orphan, the libertine who has dragged a fresh victim to his lair, imagine that they are permanently shielded, by this misapplication of the law of libel, from fearless exposure to public scrutiny and indignation by the eagle gaze of an unfettered Press. Clouds and darkness may for the moment rest upon it, but they cannot, in the nature of things, endure. In the very gloom of its present humiliation we read the prediction of its speedy and certain restoration to its rights and its true dignity—to a sphere not of legal sufferance merely, but of admitted usefulness and honor.

This narrative, which came within three-quarters of a column of filling the entire inside of the Tribune, and must have covered fifty pages of foolscap, was written at the rate of about a column an hour. It set the town laughing, elicited favorable notices from more than two hundred papers, and provoked the novelist to new anger, and another suit; in which the damages were laid at three thousand dollars. ‘We have a lively trust, however,’ said the offending editor, ‘that we shall convince the jury that we do not owe him the first red cent of it.’ This is one paragraph of the new complaint:

And the said plaintiff further says and avers that the syllables inhu, followed by a dash, when they occur in the publication hereinafter set forth, as follows, to wit, inhu——, were meant and intended by the said defendants for the word inhuman, and that the said defendants, in using the aforesaid syllables, followed by a dash as aforesaid, in connection with the context, intended to convey, and did convey, the idea that the said plaintiff, on the occasion referred to in that part of said publication, had acted in an inhuman manner. And the said plaintiff also avers that the syllable ungen, followed by a dash, as follows, to wit, ungen——, when they occur in the publication hereinafter set forth, were meant and intended by the said defendants either for the word ungenerous or the word ungentlemanly, and that the said defendants, in using the syllables last aforesaid, followed by a dash as aforesaid, in connection with the context, intended to convey, and did convey, the idea that the said plaintiff, on the occasion referred to in that part of said publication, had acted [238] either in a most ungenerous or a most ungentlemanly manner, to wit, at the place and in the county aforesaid.

In an article commenting upon the writ, the editor, after repelling the charge, that his account of the trial was “replete with errors of fact,” pointedly addressed his distinguished adversary thus:

But, Fenimore, do hear reason a minute. This whole business is ridiculous. If you would simply sue those of the Press-gang who displease you, it would not be so bad; but you sue and write too, which is not the fair thing. What use in belittling the profession of Literature by appealing from its courts to those of Law? We ought to litigate upward, not down. Now, Fenimore, you push a very good quill of your own except when you attempt to be funny—there you break down. But in the way of cutting and slashing you are No. one, and you don't seem averse to it either. Then why not settle this difference at the point of the pen? We hereby tender you a column a day of The Tribune for ten days, promising to publish verbatim whatever you may write and put your name to—and to publish it in both our daily and weekly papers. You may give your view of the whole controversy between yourself and the Press, tell your story of the Ballston Trial, and cut us up to your heart's content. We will further agree not to write over two columns in reply to the whole. Now why is not this better than invoking the aid of John Doe and Richard Roe (no offense to Judge W. and your “learned kinsman!” ) in the premises? Be wise, now, most chivalrous antagonist, and don't detract from the dignity of your profession!

Mr. Cooper, we may infer, became wise; for the suit never came to trial; nor did he accept the Tribune's offer of a column a day for ten days. For one more editorial article on the subject room must be afforded, and with that, our chapter on the Cooperage of the Tribune may have an end.

Our friend Fenimore Cooper, it will be remembered, chivalrously declared, in his summing up at Ballston, that if we were to sue him for a libel in asserting our personal uncomeliness, he should not plead the General Issue, but Justify. To a plain man, this would seem an easy and safe course. But let us try it: Fenimore has the audacity to say we are not handsome; we employ Richard—we presume he has no aversion to a good fee, even if made of the Editorial ‘sixpences’ Fenimore dilated on—and commence our action, laying the venue in St. Lawrence, Alleghany, or some other county where our personal appearance is not notorious; and, if the Judge should be a friend of ours, so much the better. Well: Fenimore boldly pleads Justification, thinking it as easy as not. But how is he to establish it? We of course should not be so [239] green as to attend the Trial in person in such an issue—no man is obliged to make out his adversary's case—but would leave it all to Richard, and the help the Judge might properly give him. So the case is on, and Fenimore undertakes the Justification, which of course admits and aggravates the libel; so our side is all made out. But let us see how he gets along: of course, he will not think of offering witnesses to swear point-blank that we are homely—that, if he did not know it, the Judge would soon tell him would be a simple opinion, which would not do to go to a Jury; he must present facts.

Fenimore.— “Well, then, your Honor, I offer to prove by this witness that the plaintiff is tow-headed, and half bald at that; he is long-legged, gaunt, and most cadaverous of visage—ergo, homely.”

Judge.— “How does that follow? Light hair and fair face bespeak a purely Saxon ancestry, and were honorable in the good old days: I rule that they are comely. Thin locks bring out the phrenological developments, you see, and give dignity and massiveness to the aspect; and as to slenderness, what do our dandies lace for if that is not graceful They ought to know what is attractive, I reckon. No, sir, your proof is irrelevant, and I rule it out.”

Fenimore (the sweat starting).— “Well, your Honor, I have evidence to prove the said plaintiff slouching in dress; goes bent like a hoop, and so rocking in gait that he walks down both sides of a street at once.”

Judge.— “That to prove homeliness? I hope you don't expect a man of ideas to spend his precious time before a looking-glass? It would be robbing the public. ‘Bent,’ do you say? Is n't the curve the true line of beauty, I'd like to know? Where were you brought up? As to walking, you don't expect ‘a man of mark,’ as you called him at Ballston, to be quite as dapper and pert as a footman, whose walk is his hourly study and his nightly dream —its perfection the sum of his ambition! Great ideas of beauty you must have! That evidence won't answer.”

Now, Fenimore, brother in adversity! wouldn't you begin to have a realizing sense of your awful situation? Would n't you begin to wish yourself somewhere else, and a great deal further, before you came into Court to justify legally an opinion? Wouldn't you begin to perceive that the application of the Law of Libel in its strictness to a mere expression of opinion is absurd, mistaken, and tyrannical?

Of course, we shan't take advantage of your exposed and perilous condition, for we are meek and forgiving, with a hearty disrelish for the machinery of the law. But if we had a mind to take hold of you, with Richard to help us, and the Supreme Court's ruling in actions of libel at our back, would n't you catch it? We should get the whole Fund back again, and give a dinner to the numerous Editorial contributors. That dinner would be worth attending, Fenimore; and we'll warrant the jokes to average a good deal better than those you cracked in your speech at Ballston.

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