James Fenimore Cooper.

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The great fault in the exercise of the criminal law,
in most, if not all, of the States of America, is a
false humanity. The people have heard a great deal,
and a great deal justly, of the useless severity of the
laws in many European countries, and they very
naturally turn with horror from a system, that they
are fond of thinking is unnecessary to a nation in
their own condition. I cannot say I agree w^ith them.
As there is less temptation to crime in the United
States, than in any other country, and, as m,ore care
is taken to prevent it by the use of education, and
the entire absence of legal monopolies, it is as un-
wise as it is unnecessary to reject those means of pre-
serving the order of society which the experience of
all ages has shown to be salutary.


The first and great duty of every government is to
remove, as far as possible, all temptations to crime.
This is to be done by the admission of equal rights,
and by as general a diffusion, as possible, of moral
influences. But after these solemn and imperative
duties are performed, little can be said against a stern
and wholesome exercise of justice. Punishment, in
order to be impressive, should be prompt and infal-
hble. The indiscreet use of the prerogative of mercy
is one of the great errors of American criminal policy ;
though it is said that necessity often compels its ex-
ercise, as the public penitentiaries cannot hold the
convicts that are accumulated by time, and which
embrace crimes that elsewhere would sweep the of-
fender from the earth. I should think this argument
must prove some fault in the criminal code. It is
true, that an immense proportion of the convicts are
foreigners, or of the unfortunate race of blacks : but
still it is necessary to legislate for things as they are •
and if rogues can emigrate from Europe, and a class
of ignorant and hapless wretches exist in the State
to swell the amount of crime, I should think both
policy and justice require that a suitable provision
should be made to meet the evil.

I was particularly struck with the fact, that a re-
port of the superintendents of the New- York State
Prison, commenced with premises like this : " As the
object of all punishment is the reformation of the
offender ;" now I take it, that the object of the pun-
ishments which communities inflict, is for no such
purpose. Society punishes for its own protection,
though reformation may^ and when practicable with-
out losing sight of the great and principal cause of
legal punishments, it should ever be considered as a
collateral good, to be effected by the same means.
But it is dangerous, indeed, to assume that punish-
ment has no other motive than reformation. If this
'be true, why do we execute for murder, or why are


SO many people taught to believe that He who holds
the destinies of the universe has decreed that sinners
shall expiate their offences in a lasting condemnation ?
It is very true, that as we can understand only our
relations to the Deity, without comprehending the
relations which the Deity holds to us, it may be dan-
gerous, or even impious, to pretend to deduce any
reasoning from the great laws of God, which shall
be strictly applicable to the obligations which man
owes to his fellows. But we all know that the world
does not graduate punishments of offences against
society for the purpose of amending the criminal,
though w^e may all feel that an object so humane
should not be neglected when good opportunities for
effecting it are afforded.

America is peculiarly placed as respects crime. It
is a young, vigorous, abundant, and a highly commer-
cial countrj^, in which moveable property abounds,
and in which it is rem.arkably exposed to be pilfered
by the absence of a rigid police ; a sort of protection
that is not very suitable to the habits and opinions
of its people. The great and increasing intercourse
with an old nation, in which crime abounds to an
extraordinary degree, and the prodigious facilities of
a communication which every day is rendering still
more easy, tempt rogues from the mother country to
shift their scene of action. Thus, w^hile the country
has been acting on a criminal law that is adapted,
perhaps well enough, to the degree of temptation
which exists in the nation itself, its cities are begin-
ning to sw^arm with fugitive felons from England, who,
under favour of a common language, not only prac-
tise all their artifices with equal dexterity as at home,
but, w^hat is far worse, who bring corruption into the
land, and lead hundreds of youths into the paths of
vice. But this is an evil that will correct itself, though
I think the good people, especially of the large towns,
are little aware that their excessive lenity is not only

Vol. II. Y


mistaken on abstract principles, but that it is pecu-
liarly wrong in a nation, that, however it may go to
the root of crime by diminishing temptation as much
as possible, must still, for a long time, be exposed to
a prodigious importation of vice.

The law of real property, in the United States, is
a good deal the same as that of England. Entails are,
however, destroyed every where, and the doctrine
of descent has, in many of the States, been roughly
handled. In New-York — I quote this State oftenest,
as the most populous and the most important, though
you are to understand that the laws of New- York are
strictly apphcable only to itself, while they are com-
monly founded on principles that are general — in
New-York, the father is the next heir of a child who
leaves no issue. This is a wise, a humane, and a
natural departure from the dictum of the common
law, and it does much good in a country like this.
The next of kin inherit, after the father, in equal por-
tions, without distinction of age or sex. The widow
is entitled to one-third of the personal estate of the
husband, and to the use of one-third of the real es-
tate during life. The husband is owner of all the
personals of the wife, and he is the tenant by the cour-
tesy of her real estate, according to the provisions of
the English common law. There is, however, a good
deal of difference in the rights of husbands and wives
in the different States, in some, the property of the
woman is much more respected than in others.

The party in possession of property in fee, can
devise it, without restriction, to whom he pleases.
This is, I think, a wiser provision than the law of
France, which renders natural descent, to a certain
extent, unavoidable ; but the law of France I take to
be an enactment that is intended to do away with
the custom of entails, which had gotten such deep
root in Europe. Rich men, here, often give more to
their sons than to their daughters ; though it is very


common for men of small fortunes to make the daugh-
ters independent at the expense of the sons. Of
course, any irregularity or alienation of property
from the descent (or asceyit) prescribed by the law,
must be made by will.^

Marriage is, of course, altogether a civil contract.
Its forms are, however, more or less artificial, ac-
cording to the policy of particular States. In some,
bans are necessary ; in others, evidence that would
establish any other contract would establish that of
marriage. As a breach of the marriage contract is
always criminal, the law requires, in cases of indict-
ments for bigamy, rather more positive testimony
than would be required in those of inheritance and
legitimacy. Thus, a child would be considered born
in wedlock, in many States, under the reputation of
matrimony, though a man would scarcely be punish-
ed for bigamy, without direct evidence of the two
contracts. The policy of the different States, how-
ever, varies so much, to suit the particular conditions
of society, that no general rule can be laid down. In
portions of the country recently settled, it is the prac-
tice to make the contract before a justice of the peace,
as in many parts of New- York ; but then, a justice
of peace has no more power to celebrate a marriage
than any other man. It is thought that his testimony, as

* The writer is hourly acquiring evidence of the gross igno-
rance concerning the United States, which travellers are im-
porting into Europe, where, Heaven knows, enough has long
existed. He has lately read a book, written by an English-
man, in a sufficiently amicable spirit, which says that a gentle-
man of New-York, who is the proprietor of a large estate
(40,000 acres) is obliged by law to let it pass to his nephews and
nieces ! It is possible that, in the case in question, a reversionary
interest might have been given by some former owner in fee, to
certain nephews and nieces ; but any owner in fee (of mature
age) can devise to whom he pleases. The law allows devises
to go as far as all people actually living, and to twenty-one
years after, by fixing age, sex, or any other quahfication by
which the partv to inherit can be accurately distinguished.


a^iiblic officer, is more imposing than that of a pri-
vate individual, and these people always attach high
importance to legal rank. People of any condition
are always (unless in extraordinary exceptions) mar-
ried by clergymen.

I can tell you little more that is distinctive in
American law, without dealing in exceptions ; since,
though the governing principles are always the same,
the policy of one State differs so much from that of


Sec. &c.


It is an age since I wrote to any of the club. But
though my pen has been necessarily quiet, the inter-
vening time has not been unemployed. In the inter-
val, I have run over an immense surface in the
southern and western States. It would be idle to
attempt to describe all I have seen, and there would
be the constant danger of leading you astray by ex-
ceptions, should I descend into detail. Still, as there
is a great deal that is distinctive, I shall endeavour
to convey to you some general ideas on the subject.

The first, and by far the most important feature,
which distinguishes these States from their northern
sisters, is slavery. Climate and productions induce
some other immaterial differences. The laws, usages,
institutions, and political opinions, with such excep-
tions as unavoidably grow out of states of society
marked by such distinctions as the use or the absence
of domestic slaves, are essentially the same.


There is a broad, upland region, extending through
the interior of Virginia, the two CaroHnas, and
Georgia, where slaves are used, niore as they were
formerly used in Nev/-York and in the eastern States,
than as they are now used in the other sections of
the States named. That is to say, the farmer is the
master of three or four labourers, and works in the
field at their sides, instead of being a planter, who
keeps a driver, and what are called gangs. Tennes-
see, and Kentucky also, with some exceptions, em-
ploy the negroes in a similar manner ; while on the
Mississippi, the Gulf of Mexico, and along the coast
of the Atlantic, as far north as the Chesapeake,
slavery exists much in the same forms as it is found
in the English West India islands.

The country, on the whole coast of the United
States, until one gets far northward and eastward, is
low and champaign. It is healthy, or not, according
to the degrees of latitude, and to local situation.
The uplands are invariably salubrious. There is no
region on earth more beautiful, or more fertile, than
large parts of Virginia, Kentucky, and Tennessee.
There is also much barren, or otherwise little valu-
able land, in the former State, as there is in the
neighbouring States of North and South Carolina.

South Carolina and Louisiana are the only two
States which, at the census of 1820, contained more
blacks than whites. The former had 231,812 white
inhabitants, and 258,497 blacks ; leaving a balance
of 26,685 in favour of the latter. Of the blacks,
251,783 were slaves, being 19,971 more slaves than
whites. Louisiana had, at the same time, 73,383
whites, and 79,540 blacks ; of the latter, 69,064
were slaves, being rather fewer slaves than whites.
All people having black blood are enumerated as
blacks. Georgia is the next considerable community,
which has so large a proportion of blacks. It had,
in 1820, 189,566 whites, and 151,439 blacks. Vir-


ginia had 603,008 whites, and 462,042 blacks ; and
North Carolina, 419,200 whites, and 219,629 blacks,
or nearly two whites to one black. In Kentucky
there were 434,644 whites to 129,491 blacks; and
in Tennessee, which is much disposed to the habits
of a free State, there were 339,727 whites to 82,826
blacks ; a proportion of the latter not greater than
what formerly existed in New- York and New-Jersey.
Most of the blacks, in all these States, are slaves.

In 1790, there were 757,208 blacks in the United
States; in 1800, 1,001,729; in 1810, 1,377,810; in
1820, 1,764,836. By making premises of these facts,
and taking the past rate of increase as a rule for the
future, it would be found that there are now (1828)
about 2,000,000 of blacks in the United States. In
1820, there were 233,400 /ree blacks in the United
States. As the free blacks do not increase at the
same ra^te as the slaves, this number cannot have
accumulated in a full proportion, by natural causes.
But emancipation has been busy since. New-York,
alone, has hberated more than 10,000 slaves since
1820. We will therefore assume that natural in-
crease and emancipation have kept the fiee blacks
up to the level of the increase of the whole number.
This would leave us something like 1,750,000 for the
whole amount of slaves in the country, at the pres-
ent moment (1828.) This result is probably not far
from the truth. You will see, however, that my
premises are a little faulty, because the increase of
blacks between the years 1800 and 1810 was a good
deal greater, in comparison with whole numbers, than
between 1810 and 1 820. This fact is owing to the abo-
lition of the slave trade, which occurred between the
two censuses of 1800 and of 1810, and which being
known by a prospective law, induced extraordinary
importations. Thus the increase between 1 800 and
1810 was 376,581, whereas between 1810 and 1820
it was only 387,026, although there was so much


larger a stock to increase from. Still, I think the
amount of slaves cannot be much short of the num-
ber 1 have named. The white population, m the
whole country, is now about 10,000,000. Of this
number, however, at least 6,000,000, and probably a
great many more, are in the free States. If we put
the entire white population of the slave-holding
States at 3,500,000, w^e shall probably give them
quite as many as they possess. This would be making
two whites to one slave in those States, and it is
probably as near the truth as one can get at this dis-
tance of time from the census. But it has already
been seen, that in many of these States the propor-
tion of blacks is much larger than in others ; South
Carolina actually possessing more slaves than whites;
and Tennessee having four whites to one black.
There are, again, districts in these very States, in
which the proportion of the whites to the blacks, and
of the blacks to the whites, is even still greater.

In addition to these facts, it may be well to state
that the whole white population of the country is
known to have increased faster than that of the
coloured, though the black population of the south-
ern, or slave-holding States, is thought to have in-
creased a little faster than that of the whites.

In considering the question of slavery, as now
existing in the United States, the subject naturally
divides itself into the past, the present, and the
future. It has been often said, that a people, claim-
ing to be the freest of the earth, ought to have
brought their practice more in conformity with their
professions, and to have abolished slaver}^ at the time
they declared their independence. There are many
unanswerable reasons to this allegation ; or reasons
that will be deemed unanswerable, by that portion
of mankind who regard life as it actually exists, in
its practical aspects and influences. There is not
now, nor has there ever been since the separation of


the colonies from the mother country, any powet* to
emancipate the slaves, except that which belongs to
their masters. This reason might satisfy most prac-
tical men of the impossibility of instantly achieving
so desirable an object. That sort of humanity, which
regards the evils of a distant and alien people, and
which, at the same time, turns a cold eye on the suf-
ferings of those at hand, is, to say the least, as useless
as it is suspicious. There is scarcely a nation in Eu-
rope, if, indeed, there be one, that has not a propor-
tion of its population, that is quite equal to the pro
portion the slaves of America bear to the whites,
which is not quite as low in moral debasement, the
name of liberty alone excepted, and vvdiich, as a
whole, endure much more of physical suffering than
the negroes of America.

The condition of the American slave varies, of
course, with circumstances. In some few portions
of the country, he is ill dealt by. In most districts
his labour is sufficiently light, his clothing is adapted
to the cHmate, and his food is, I believe, every where
abundant. The strongest evidence, after all, which
can be given, that the amount of animal suffering
among the American slaves is not great, (there are
exceptions, of course,) is the fact that they are a hght-
hearted and a laughing race. I am very ready to
grant that ignorance, and absence of care, are apt to
produce hilarity, and that some of the most degraded
and least intellectual people of the earth, are among
the gayest ; but I believe that it is a rule in nature,
that where there is much animal suffering there is an
animal exhibition of its existence.

There is still a higher, and a very numerous class
of American slaves, who are far better instructed,
better clothed, and better fed, and v/ho are altogether
a superior race to the lowest class of the European
peasants. I mean the domestic servants, and those
who labour as mechanics and artisans.


While on this branch of the subject, I shall take
occasion, to saj, that yearly meliorations in the con-
dition of the slaves (and of the blacks generally,) are
taking place in some one part of the country or other.
Several unjust and exceedingly oppressive laws, that
were the fruits of colonial policy, have been repealed,
or greatly qualified ; and public opinion is making a
steady advance to the general improvement, and, I
think, to the final liberation of the race. Although
these changes are not as rapid as they might be, even
with a due regard to policy, and far less rapid than
most good men could wish, it is a course that is more
likely to be attended with less positive injury to the
race of beings that true philanthropy w^ould so gladly
serve, than one as headlong and as ill-advised as mere
declaimers and pretenders would dictate.

I think no candid man will deny the difiiculty of
making two or three millions of people, under any
circumstances, strip themselves, generally of half
their possessions, and, in many instances, of all.
There are few nations in Europe, at this hour, in
which the poorer classes w^ould not be reheved from
serious pressure, w^ould they, who have the means,
tax themselves to discharge the debts which are the
causes of so much of the heavy impositions of their
respective governments. Now, this w^ould be a meas-
ure that would do good to millions, great and almost
inconceivable good, and harm to none but to them that
paid ; whereas, a sudden, or any very violent eman-
cipation of the slaves of America, w^ould ruin those
who did it, and scarcely do less than ruin half, or
even more, of those in whose behalf the charitable
act would be performed. Let me be understood. I
do not mean to say that much more than is done
might not be done, prudently, and with safety ; nor
do I mean to say that most of those who find them-
selves in possession of a species of property, that they
have been educated to think a natural and just aCqui-


sition, think much of the matter at all ; but what I
would wish to express is, that they who do think
calmly and sincerely on the subject, see and feel all
these- difficulties, and that they weaken efforts that
would otherwise produce an effect more visible than
the sentiment which I think is silently working its
way throughout the whole of this nation.

In considering the question of American slavery,
in reference to the past, it is plain that Europe has
been an equal participator in all that there is of
shame, or sin, in the transaction. There can be no
charge more vapid and unjust, than for an European
to reproach the American with the existence of slave-
ry in his country. That the American is in the en-
joyment of greater power to do natural justice than
the European, is just as true, as that, in most things,
he does it. That slavery is an evil of which the great
majority of the Americans themselves, who have no
present agency in its existence, would gladly be rid
of, is manifest, since they have abolished it in so many
States already; but that it is an evil not to be shaken
off by sounding declarations, and fine sentiments, any
man, who looks calmly into the subject, must see.
But so far as a comparison between Europe and
America is concerned, let us, for an instant, examine
the exceedingly negative merit of the former. Is it
not a fact that the policy of all America was for more
than a century controlled by Europe, and was not
this scourge introduced under that policy ? Has that
policy, in Europe, been yet abandoned ? Let us take
the two most prominent nations boldly to task at
once ; does England or France, for instance, at this
moment, own a foot of land on earth, where black
slaves can be profitable, ^nd where they do not use
them ?* It is absurd for France, or for England, to

* It is well known that a negro would be next to nothing ia
the Canadas, &c.


say, we have no slaves in our respective kingdoms,
properly so called, when every body knows that the
one is at this moment filled with white beggars, and
the other with paupers who are supported by the
public purse, and both for the simple reason that they
are overflowing with population. It is true, that two
centuries ago, when they had more room, they did
not import negroes from Guinea ; but it is, also, just
as true, that they sent their ships to convey them to
colonies which are situated in climates where they
might repay them for their trouble. It is as puerile
as it is unjust, therefore, for these two countries,
(most others might be included,) to pretend to any
exclusive exemption from the sin or the shame of

The merit of Christendom on the subject of the
wrongs of Africa, is, at the best, but equivocal. Yet,
such as it is, the meed is better due to the United
States than to any other nation. They were the
first to abolish the trade in human flesh, though the
nation, of all others, that might most have reaped
that short-sighted, but alluring profit, which tempted
mea to the original WTong. Had not the Congress
of the United States abolished this trade, there is no
doubt milHons of acres might have sooner been
brought into lucrative cultivation, and the preseni
generation at least would have been millions the
richer. The w^hole body of the whites might have
become a set of taskmasters to gather wealth from the
labour of the blacks. No doubt true policy dictated
the course they have taken, and they have but a very
negative merit in pursuing it : still it should always
be remembered, that what has been done, was done
by those who might have profited in security by a
different course, and by those, too, who had been
educated in the shackles of a deeply-rooted prejudice
on the subject.

In reproaching the Americans with incongruity


between their practices and their professions, two
or three points are very necessary to be remember-
ed. In the first place, it is not true, as respects near
7,000,000 of the ten that comprise their population ;

Online LibraryJames Fenimore CooperNotions of the Americans: picked up by a travelling bachelor (Volume 1-2) → online text (page 50 of 58)