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1— Crime and Punishment
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Crime and Punishment

In an unusually striking and indeed unusually chilling moment in The Philosophy of Law (1796), Kant takes it upon himself to defend the death penalty. He defends it not on the ground that it is socially efficacious but on the ground that it is philosophically coherent. The death penalty represents the workings of justice at its most absolute and most complete, Kant argues, for what it embodies, what it executes as law, is nothing other than the principle of commensurability, the fitness that comes from matching "Like with Like." And likeness, in this case, can only mean the "Equalization of Punishment with Crime":

It is just the Principle of Equality, by which the pointer of the Scale of Justice is made to incline no more to the one side than the other. . . . This is the Right of Retaliation (jus talionis ); and properly understood, it is the only Principle which . . . can definitely assign both the quality and the quantity of a just penalty. All other standards are wavering and uncertain; and on account of other considerations involved in them, they contain no principle conformable to the sentence of pure and strict Justice. . . . [For this reason] whoever has committed Murder, must die . . . . There is no Likeness or proportion between Life, however painful, and Death; and therefore there is no Equality between the crime of Murder and the retaliation of it but what is judicially accomplished by the execution of the Criminal. . . . This ought to be done in order that every one may realize the desert of his deeds, and that bloodguiltiness may not remain upon the people. . . . The Equalization of Punishment with Crime is therefore only possible by the cognition of the Judge extending even to the penalty of Death.[1]

Kant begins, uneventfully enough, with the familiar image of the Scale of Justice, invoked here to dramatize equality under the law, an equality distributed among all its juridical subjects. Almost immediately, however, this distributive equality is transposed onto a different axis, transposed, that is, into a retributive equality, a relation of "likeness or proportion" between "deed" and "desert," between what one does and what is done to one in return. Retributive equality


dictates that punishment must be commensurate with the crime—must be fully answerable to it, or, more to the point, fully exhaustive of it—for it is only with this full correspondence that there can be full annulment, so that everything will be resolved, leaving behind no residue, no "bloodguiltiness . . . remain[ing] upon the people." The death penalty, a closed circuit of act and consequence, thus stands for Kant not only as a specific instance of "an adequate Retaliation after the principle of 'Like with Like'"[2] but also as a supreme instance, perhaps the supreme instance, of a rationality adequate unto itself. As such, it is the highest form of justice, justice "pure and strict," imaging forth in its very transcendence and conclusiveness the ideal shape of Reason itself.[3]

Kant, Nietzsche, Beccaria

Far from being an anomaly or an embarrassment, Kant's penal theory, I want to suggest, actually dramatizes and literalizes his philosophy, bringing into the foreground the presumptive equivalence which underwrites his image of Reason as integral and self-adequating, a point too little acknowledged by philosophers who call themselves Kantians.[4] This presumptive equivalence, in any case, is what intrigues and appalls Nietzsche when he observes that "ethics has never lost its reek of blood and torture—not even in Kant." Why is it that in our thinking about justice there is always this "sinister knitting together of the two ideas, guilt and pain," not only in the sense that guilt is imagined to have brought pain into the world but also in the sense that pain is imagined to be the proper answer, the proper sequel and remedy, to guilt, as if its dispensation could somehow obliterate guilt by a kind of corrective equivalence? Why is it that "the infliction of pain provide[s] satisfaction"?

These are the questions that Nietzsche asks, gleefully, importunely, and maniacally, in The Genealogy of Morals (1887). By way of answer, he points to the cognitive style of "primitive thought," which, according to him, had always been a barter mentality, dominated by the idea of the commensurate, the idea "that everything has its price, everything can be paid for." That barter mentality gave rise to the "oldest and naivest moral canon of justice." "The mind of early man," Nietzsche says, "was preoccupied to such an extent with price making, assessment of values, the devising and exchange of equivalents, that,


in a certain sense, this may be said to have constituted his thinking."[5] Given this history of human cognition—given its genesis under the auspices of trade—it is not surprising that there should arise

the notion that for every damage there could somehow be found an equivalent, by which that damage might be compensated—if necessary in the pain of the doer. To the question how did that ancient, deep-rooted, still firmly established notion of an equivalency between damage and pain arise, the answer is, briefly: it arose in the contractual relation between creditor and debtor, which is as old as the notion of "legal subjects" itself and which in its turn points back to the basic practices of purchase, sale, barter, and trade.[6]

Nietzsche's genealogy of morals offers one way to historicize the transcendent claims of justice in Kant, a historicization which suggests that the concept of justice, far from being a categorical imperative, might turn out itself to be a categorical derivation: derived, that is, from the lowly habit of commerce—the habit of purchase, sale, barter, and trade.

In my own attempt to explore the limits of justice and to give voice to what is not encompassed or resolved by that concept, this chapter is clearly indebted to The Genealogy of Morals . At the same time, the Nietzschean genealogy itself, in making justice a cognitive effect of barter—and thus primordial, universal, and instinctual—would seem to be conceding away too much analytic space, and so strikes me as being, in turn, in need of historicization, if it is to retain any degree of explanatory (or perhaps even descriptive) specificity. It is that historicized genealogy, a more nuanced and more densely elaborated supplement to the Nietzschean thesis, that I want to develop here. More specifically, I want to examine punitive justice not as a relic from times immemorial but as a cognitive mode that has continued to evolve, its scope, purpose, and rationale being shaped and reshaped by its many contexts of action. In this chapter, I will focus on one particular context, the transition from classical republicanism to modern liberalism in early-nineteenth-century America, a development which, to my mind, not only had direct bearings on the boundaries of the punitive but also opened up a new set of expressive venues (and a new set of conceptual conundrums) for that most enduring and most problematic of ideas, the idea of the "commensurate."

Beginning, then, with punitive justice as one attempt at the com-


mensurate, one among others, I will try to map out some of its operative features, its imperatives and embarrassments as it evolves, taking on new guises and new meanings. And in the end, I want to suggest that its trajectory is an uneven one: unevenly articulated in different cultural domains, marked by different jurisdictional scopes, different signifying radii, different degrees of resolution, and engendering along the way different orders of perplexities as well as different kinds of residues. These uneven developments are the subject of this book as I try to sort out the many faces of the commensurate, not only in punitive justice but also in distributive justice, not only in matters of morality but also in matters of polity, and not only within the precincts of criminal law but also under the rubric of novelistic justice.

Toward that end, the conversation here between Kant and Nietzsche might well be imagined as a two-way conversation: an intended critique of Kant by Nietzsche, to be sure, and—not intended, not ordinarily argued, but entertainable nonetheless—a historicization of Nietzsche by Kant. For The Philosophy of Law had a genealogy that was, after all, less primordial than the one imagined by Nietzsche as dating back to the "primitive thought" of "early man." Primitive or not, Kant was writing in the late eighteenth century and was, moreover, goaded into doing so, goaded most especially by the penal reforms just then sweeping across Europe. If there was a note of hysteria in his defense of the death penalty, that was no doubt because he had been witnessing for some time the phenomenal success of his adversary, Cesare Beccaria, whose treatise on penal reform, On Crimes and Punishments , first published in Tuscany in 1764, was translated into French in 1766: translated by Morellet, annotated by Diderot, prefaced by Voltaire, and enshrined instantly as one of the supreme credos of the Enlightenment. Beccaria was hailed as the "Socrates of our epoch,"[7] winning the rapt attention not only of the Paris intelligentsia but also of a number of monarchs, including Frederick II of Prussia, Maria Teresa of Austria, Grand Duke Leopold of Tuscany, and Catherine the Great of Russia, who called upon the author to reside at her court and supervise the necessary reforms in person.[8] In less exalted circles, Blackstone also featured Beccaria in his Commentaries on the Laws of England , while Bentham was moved to call him "my master, first evangelist of Reason."[9] Meanwhile, in the American colonies, John Adams, as a young lawyer in 1770, saw fit to invoke "the words of the marquis Beccaria" to defend the British soldiers


implicated in the Boston Massacre—to such effect that none of them was found guilty of murder.[10] Jefferson, too, copied into his Commonplace Book long passages from Beccaria, to guide future legal reform in Virginia.[11]

In the name of Reason, Enlightenment Reason, Beccaria rejected the death penalty in no uncertain terms. If "I can show that death is neither useful nor necessary I shall have gained the cause of humanity," he announced conspicuously in the chapter devoted to that subject. The crucial word here was "useful," a supreme criterion for Beccaria, for it was "the idea of common utility which is the foundation of human justice." And upon this foundation, Beccaria argued that a "just" punishment should be no more than what would "suffice to deter men from committing crimes."[12] The purpose of punishment, in other words, was not to exact atonement for the crime already committed but to prevent crimes from being committed afresh. And it was because of its inadequacy as a preventive measure that Beccaria would come to reject the death penalty in favor of something more efficient, namely, life imprisonment:

It is not the terrible yet momentary spectacle of the death of a wretch, but the long and painful example of a man deprived of liberty, who, having become a beast of burden, recompenses with his labors the society he has offended, which is the strongest curb against crimes. That efficacious idea—efficacious, because very often repeated to ourselves—"I myself shall be reduced to so long and miserable a condition if I commit a similar misdeed" is far more potent than the idea of death, which men envision always at an obscure distance.[13]

In short, for Beccaria what was wrong with the death penalty was that it was not efficient enough. Even though it managed to kill off the actual criminal, it had no effect on potential offenders. Life imprisonment, by contrast, worked much better, since its penalty would be felt by all "those who are the witnesses of punishment, inflicted for their sake rather than the criminal's."[14] Sentenced to jail, the criminal would be made into an object lesson, a "long and painful example" to "inspire terror in the spectator." And, to maximize that object lesson, Beccaria insisted that the prison should be made into a place of utter misery and that the jail sentence should be carried out "among fetters or chains, under the rod, under the yoke, in a cage of iron."[15] For Kant, however, even this severity would not suffice, for the very talk


of an "efficacious" punishment was anathema to his nonutilitarian philosophy. And so he set out, in The Philosophy of Law , to attack the argument of "the Marquis Beccaria" and to expose his "sophistry" and "compassionate sentimentality."[16]

Of course, in the next century it was Beccaria's philosophy rather than Kant's that would come to dominate the field of penal justice.[17] The early nineteenth century was the age of the penitentiary, with its environmental view of crime, its rehabilitative zeal toward the criminal, and its grand ambition to achieve the twin goals of reform and deterrence through the agency of the prison sentence.[18] The United States in particular spearheaded the movement, and new-style prisons soon sprang up: in Auburn, New York, between 1819 and 1823, in Ossining (familiarly known as Sing-Sing) in 1825, in Pittsburgh in 1826, and in Philadelphia in 1829. By the 1830s, the American penitentiary had become world famous, attracting visitors such as Alexis de Tocqueville, Gustave Auguste de Beaumont, Harriet Martineau, and Charles Dickens.

In one obvious sense, Kant and Beccaria stood at the opposite ends of an intellectual spectrum, not only in their rival championship of retribution versus deterrence but also in their rival claims to the august title of Reason. And yet in a different sense, Kant and Beccaria might also be seen not as antitheses but as kindred to each other. The axis of kinship, I would argue, was nothing less than the principle of commensurability itself, a principle embraced by both: embraced by Kant as the reflexive parity achieved by the "Equalization of Punishment with Crime," and embraced by Beccaria as the consequential parity achieved by equating crime with the sum of "harm done to society."[19] And so, no less than Kant, Beccaria also believed in justice as a principle of equivalence. The magnitude of a crime, in his case, was to be equated with the magnitude of its adverse social effect, and the magnitude of the punishment was to be calibrated in equal measure.

Indeed, it was the lack of such a system of equivalences that for Beccaria signaled the malfunction of a penal system. In that eventuality, "an equal punishment [is] ordained for two crimes that do not equally injure society." Such a lapse was not so much inhumane as inefficient, Beccaria argued, for the lack of parity between crime and punishment meant that "men will not be any more deterred from committing the greater crime." The challenge facing the penal


reformer, then, was to devise a principle of equivalence that would have the maximum deterring effect, namely, "an exact and universal scale" that would match every crime to its exact punishment. This, to Beccaria, was not at all idle talk but was a feasible undertaking, for crime and punishment were both eminently calculable for him, calculable, that is, by using "societal harm" as the common yardstick, the common measure for both the offense and the sanction. And so Beccaria's penal universe turned out to be very much a commensurate universe, horizontally organized by the principle of equivalence and vertically organized by the image of the scale. This was an article of faith for him, or perhaps I should say an article of Reason, for he insisted over and over again that what was needed in penal reform was "geometric precision" and "mathematical exactitude." "If geometry were applicable to the infinite and obscure combinations of human actions," he said, "there ought to be a corresponding scale of punishments, descending from the greatest to the least" and ensuring, in all instances, "a proper proportion between crimes and punishments."[20]

Crime and punishment, properly calibrated and properly correlated, turn out to embody a principle of "Like with Like" for Beccaria, much as they do for Kant. The surprising convergence here between these two thinkers—their shared commitment to a principle of equivalence, over and against their substantive disagreements—says something about the expressive range of Enlightenment Reason as well as about its cognitive tenacity. What was clear, in any case, was that the principle of commensurability was neither dismantled nor jettisoned in the penal reform inspired by Beccaria but was reoriented, rehabilitated, assigned a new instrumental function, and assigned a new operative site. Given the versatility as well as the ubiquity of this cognitive principle, it is tempting to study the late eighteenth and the early nineteenth centuries in just that light: as a field complexly and unevenly marked by the dictates of equivalence and complexly and unevenly institutionalizing those dictates. The history of criminal law, from this perspective, would seem to be only one strand of development within an interlocking cultural field, and any attempt to address it must address a much broader set of questions: questions about the various institutional forms of the commensurate, about the alignment of those institutions within a cultural order, about the evolving boundaries between adjacent domains, and about the possibility of re-


sidual formations, sometimes in tandem with and sometimes at odds with formations that are emerging.

In what follows, I want to look at the evolution of criminal law within this cultural field, against two related (though admittedly conjectural) phenomena. On the one hand, the shift from retribution to deterrence would seem to have coincided with a broader shift in jurisdictional boundaries, brought about by the much-discussed separation of law and morals in the late eighteenth century. On the other hand, this shift, however pronounced, was nonetheless far from uniform, which would suggest that there might be a transitional residue here: a domain imperfectly "covered," imperfectly rationalized, and therefore imperfectly registering the ascendancy of deterrence over retribution. In this context, it is helpful to remember that for all its public glamor, the penitentiary in America was actually only a minor ornament in a legal system whose center of gravity was rapidly moving in a different direction. Nineteenth-century American law was overwhelmingly economic in focus, the bulk of it occasioned by the needs of an expanding and industrializing nation, and preoccupied with the regulation and enforcement of contract, the sale and transfer of land, the granting of corporate charters, and the authorization of turnpikes, canals, bridges, and railroads. Distribution—not punishment—was the law's business in the nineteenth century, and in the complex reshuffling of institutional filiations, it was toward the economy that the law would now gravitate, honoring the dictates of a thoroughgoing instrumental rationality.[21] As Lawrence Friedman says, nineteenth-century law emphasized "the protection of property rather than morality," and for that reason "criminal justice and civil justice alike ceased to be concerned with the individual."[22]

The triumph of deterrence over retribution must be seen in this context. And to the extent that this "triumph" was itself a complex effect, itself sedimented out of some wide-ranging jurisdictional evolutions, we might speculate as well about its nonintegral character, which is to say, its incomplete summation by a discretely periodizing model. Beccaria's ascendancy, in other words, neither completely displaced Kant nor completely dissolved his claims. And so the language of retribution would end up persisting well into the nineteenth century, becoming more and more marginal perhaps, but retaining, in that marginality, not only a residual resonance but also a residual obliqueness to the normative order.


That resonance and that obliqueness are most richly played out in the novel, I want to suggest, for it is here, within this most sedimented of genres, that we would witness the continuing vitality of an older form of punishment: punishment as retribution, punishment as the Kantian equation of "Like with Like," an equation reflexively executed within a single individual. If this anachronism grants the novel a certain distance from its adjacent institutions, it also induces in it something like a cognitive overload, a justificatory crisis, one that ultimately unsettles the very intelligibility of "punishment" as a concept. And so the justice that the novel dispenses ends up being injudicious and unsatisfactory in almost every way, bringing with it not full coverage, not full resolution, but a generic sense of deficit or excess, a sense that its verdict can never be fully "equal" to its object. If there is in Kant (and in most of us) a "sinister knitting together of the two ideas, guilt and pain," as Nietzsche charges, what the novel achieves, fitfully but also quite faithfully, is the obverse of that phenomenon: a sundering of that fated couple, guilt and pain. That sundering removes pain from its causative as well as corrective partner, leaving it dangerously afloat, a phenomenon to be reckoned with entirely on its own. Unreflexive of guilt, unpunitive of guilt, and, most troubling of all, unexhausted by guilt, pain will henceforth occupy a special place in the novel as an ever-stubborn challenge to its rational order. What occasions that challenge and what that challenge means for the concept of justice are the subjects for the rest of the chapter and indeed the entire book.

Taxonomy and Jurisdiction

In 1703, Adam Latham, a laborer, and Joan Mills, wife to another laborer, were brought before the county court in Kent County, Delaware, charged with fornication and adultery. For punishment, Joan Mills was publicly whipped, twenty-one lashes on her bare back well applied, and sentenced to one year in prison at hard labor. Adam Latham was sentenced to twenty lashes. This was not the first time the two had gotten into trouble. Adam, indeed, had been charged once before with the same crime, "the Sin of Incontinency and fornication," but he had been acquitted then, the court having ordered him only to post bond guaranteeing good behavior. Now that he had broken his word, he had to endure not only physical punishment but


also the public disgrace of "wear[ing] a Roman T on his left arme on the Outside of his uppermost garment . . . for the space of six months next."[23]

As a forerunner of Hester Prynne, and a male one to boot, Adam Latham perhaps has some claim to our attention, although we should also note that his ordeal was in no way out of the ordinary. Indeed, for all its colorful pathos, the trial of this unfortunate but apparently unpenitent couple turned out to be common enough, quite unremarkable really, as trials of this type were very familiar sights in the colonial courtroom. In the seventeenth and eighteenth centuries, offenses against morality (which meant sexual offenses, for the most part) were classified as criminal offenses; they came under the jurisdiction of penal statutes and were routinely prosecuted. In eighteenth-century Pennsylvania, the penalty for the third adultery conviction was twenty-one lashes, seven years in jail, and marking with an "A" on the forehead.[24] Even harsher measures prevailed elsewhere. The Massachusetts Code of 1648 made adultery a capital offense.[25] The Duke's Laws of 1665 in New York had a similar provision.[26] The death sentence was in fact rarely invoked—the harsh penalty being a matter of some dispute—but lesser punishments such as whipping, forfeiture, fines, and imprisonment were standard measures, because according to the legal thinking of the seventeenth and eighteenth centuries, sexual offenses were not only morally transgressive but also criminally sanctionable.[27] William Nelson, studying court records in colonial Massachusetts, reports that between 1760 and 1774, a total of 2,784 prosecutions came before the Superior and General Sessions Courts and that, among these, 1074 were for sexual misconduct (the bulk of which being fornication). In other words, offenses against morality accounted for as much as 38 percent of all prosecutions and made up the single largest category of crime.[28] This astonishing fact had something to do no doubt with the proverbial zealotry of the Massachusetts Bay Colony, but as we can see in the trial and tribulation of Adam Latham and Joan Mills, even in Delaware (as well as in New York, Pennsylvania, Maryland, and Virginia), crimes against morality were arraigned in the courtroom no less than in the pulpit. At once reprehensible and indictable, they were subject not only to divine retribution but also to criminal prosecution.[29]

The lack of separation here between morality and legality, or, as was more often the case, between immorality and criminality, points


to a judicial universe recognizably different from our own. What has transpired, in the three hundred and fifty years separating us from colonial America, is nothing less than a transformation of the criminal law, a transformation reflected not merely in its stipulated contents but more fundamentally in its range of enforceable meanings, in its designated sphere of operation, and in its infrastructural relation to other vehicles of justice. That transformation changes the way "crime" itself is defined. What counts as a crime, what suffices as punishment, who is charged with its administration, and how that specific penalty must accord with the general prohibition—these taxonomic and jurisdictional changes are the very ground upon which the criminal law might be said to have a history.

Writing about a comparable shift in taxonomy and jurisdiction in seventeenth-century English law, Christopher Hill has described the abolition of church courts as an "intellectual and moral revolution." What ensued, according to him, was a growing wariness about the question of boundaries: a growing separation between legal and ecclesiastical discipline and a growing distinction between sin and crime.[30] Hill's focus here on the question of boundaries—on the shifting lines of demarcation between adjacent jurisdictions and between categories of offense—seems to me crucial in any historical theorizations about the law: about the shape it comes to take, the sphere it comes to occupy, and the neighboring institutions it comes to adjoin within a social order. Following his lead, we too might want to direct our focus not on the legal domain as it is presently composed but on the shifting contours of its composition: on the fit (or the lack of fit) between categories of the law and categories of ethical judgment. Between the reprehensible and the prosecutable, between what is condemned as sin and what is punished as crime, there is a margin of discrepancy, historically variable and historically significant.[31] The history of such variations casts light not only on the law itself, on its functions and limits at any particular moment, but also on the particular social structure which gives rise to such functions and such limits.

Indeed, what we witness in the colonial courtroom is precisely the absence (or at least the minimal presence) of such a margin of discrepancy. Sin and crime were more or less synonymous in colonial America, synonymous and coextensive. Because sin was readily translatable into and enforceable as crime, the problem of jurisdictional boundaries was neither very acute nor even very meaningful. Thus,


when the Massachusetts law of 1665 referred to fornication as "a particular Crime, a shameful Sin, much increasing amongst us,"[32] the apposition of the two words—"Sin" and "Crime"—revealed no uneasiness, no sense of possible disharmony, but rather the assurance of a clear connection, so clear that it seemed not a connection at all, but simply the reiteration of the selfsame term.

By contrast, the modernity and liberalness of our own legal culture would seem to reside in the collapse of that assurance. The identity of sin and crime, so calmly assumed by the Massachusetts lawmakers of 1665, is now a subject that inspires anything but calmness. Especially in the context of homosexual practices, tempers have flared up on just this point. "What is the connexion between crime and sin and to what extent, if at all, should the criminal law of England concern itself with the enforcement of morals and punish sin or immorality as such?"[33] This was the question put forth by Lord Devlin, a distinguished writer on criminal law and a leading protagonist in the contemporary debate about law and morals. The question was loaded, for its occasion was the controversial appearance of the 1957 Report by the Committee on Homosexual Offenses and Prostitution (commonly known as the Wolfenden Report ), which in no uncertain language had denounced any attempt "to equate the sphere of crime with that of sin." "There must be a realm of morality and immorality," the report said, a realm "which is, in brief and crude terms, not the law's business."[34] Lord Devlin disagreed. He strongly objected to the report's separation of "crime and sin, the divine law from the secular, and the moral from the criminal." For him, "the criminal law [must] overlap the moral law," because the two "happen to cover the same area."[35]

Devlin's legal and moral geography has not gone unchallenged. Indeed, on this point he has come under fire from some formidable critics, including H.L.A. Hart and Ronald Dworkin.[36] Behind these critics stands the venerable tradition of analytical jurisprudence—from Jeremy Bentham to John Stuart Mill to John Austin—a tradition whose central tenet (in the words of Austin) is that "the tendency to confound law and morals is one of the most prolific sources of jargon, darkness and perplexity."[37] The determination not to succumb to such jargon, darkness, and perplexity was one of the impulses behind legal change in the nineteenth century, and by and large it was an impulse that prevailed. By the time Oliver Wendell Holmes set out, in his celebrated 1897 essay "The Path of the Law," to "dispel a con-


fusion between morality and law," he was speaking from a mainstream position. "The law is full of phraseology drawn from morals," Holmes said, and "continually invites us to pass from one domain to the other." He wished that "every word of moral significance could be banished from the law altogether," so that we might "rid ourselves of an unnecessary confusion." Conceding that there might be "some plausibility to the proposition that the law, if not a part of morality, is limited by it," he insisted nonetheless that "this limit of power is not coextensive with any system of morals."[38]

And indeed, in the course of the nineteenth century, the coextension of law and morality—and the coincidence of sin and crime—was effectively brought to an end. Criminal prosecutions for moral offenses declined sharply after the Revolution—to an average of eleven cases per year between 1786 and 1790 and to fewer than five cases per year in the four decades thereafter.[39] The moral domain, it would seem, was quietly slipping out from under the law's jurisdiction, now increasingly construed as a limited arena. It is a telling sign that during this period the law was frequently described as a bounded enclosure, as a "sphere," a "realm," an "area," or a "province," the last word figuring conspicuously, for example, in the title of John Austin's influential lectures, The Province of Jurisdiction Determined (1832). The law was spatialized in the nineteenth century; it had a specific locale and a specific set of boundaries. Henceforth its sphere of operation was to be narrow, precise, sharply delimited. Its enforceable meanings were to be "compressed to the smallest possible compass [its] language would bear."[40] Against this background—against this contraction in semantics as well as in applicability—it is not surprising that in his celebrated essay Oliver Wendell Holmes should choose the word "path" to characterize the legal domain, for narrowness and linearity were indeed the defining attributes of "the law [taken] as a business with well understood limits, a body of dogma enclosed within definite lines."[41]

Uneven Development

The contracting boundaries of the law gave rise to an interesting gray area, no longer covered by the rigor of penal statutes but perhaps not without an alternative form of sanction. If penal law would henceforth limit itself to the specifically criminal, rather than to the gener-


ally immoral, how was the latter to be maintained as an intelligible category? What persuasive or corrective instruments must it summon forth? And if sin no longer provided the legal basis for criminalization, what other functions might it continue to perform? In what context and with what resonances would such a concept continue to have meaning?

After all, living as we do in the late twentieth century, we are all familiar with the boldly advertised "sinfulness" of rich desserts, a usage that points to yet another semantic shift—at once a spreading and a thinning out of meaning—which completely transforms a word whose referential contents had once been narrow, literal, and unambiguous. This semantic transformation had its roots in the nineteenth century, I argue, in the growing separation between judicial and nonjudicial categories, especially the growing separation between sin and crime. This, together with the relaxation of religious discipline, effectively dislodged sin from its customary moorings. No longer anchored to a formal system of punishment, it became instead something like a floating signifier, opening itself to an extralegal set of meanings and lending its weight to an extralegal structure of justice.

This extralegal area—newly removed from the purview of the law but residually connected to it and possibly at odds with it—is of special interest to literary critics. For it is in this gray area, this alternative realm of justice, partly overdetermined but also partly indeterminate, that we might be able to observe some of the cultural specificities of the novel. Here I have in mind the recent hypothesis (advanced by D. A. Miller, John Bender, and Richard Brodhead, among others) about the possibility, amenability, and efficacy of the novel as an instrument of social discipline.[42] I want to reorient this hypothesis, taking as my point of departure not the perfected discipline of the novel but its precarious maintenance. What interests me is the uncertain primacy (and indeed the uncertain profile) of justice as it is textualized in the novel, as it takes the form of something other than a purely logical proposition. Unlike criminal justice, whose operative terms are to become specific and explicit, without nuance or ambiguity, novelistic justice remains allusive, elastic, circuitous. And unlike the canon of strict construction in criminal law, which now limits the "punishable" to its narrowest possible meaning, novelistic justice continues to operate under a canon of the broadest construction, pun-


ishing sins no longer deemed actionable by jurists and, out of that residual latitude, also stretching the concept of "punishment" to its breaking point.

The relation between law and literature that I am suggesting, then, is tangential (and perhaps even antithetical) to the ones more customarily proposed, including those offered by the early commentators on the novel. When Hazlitt said of Richardson that "he sets about describing every object and transaction, as if the whole had been given in on evidence by an eye-witness," and when Charles Lamb said that reading Defoe "is like reading evidence in a court of Justice,"[43] what they had in mind was the palpable affinity between two descriptive surfaces: the minute details of legal evidence and the minute details of novelistic portraiture. What concerns me, however, is not so much the affinity between the two surfaces as a discrepancy between what is inscribed or intimated in each. It is this discrepancy—between their figurative widths or densities, between the self-imposed singularity of reference in criminal law and the self-flaunting multiplicity of reference in the novel—that makes law and literature two different signifying theaters, two different punitive environments, generating different meanings for what counts as a crime and granting different degrees of completeness to its proposed resolution.

To put this another way, we might say that by the early nineteenth century, criminal law had become (or was trying to become) a non-symbolic field, the action of the law being restricted to "the unvarnished meaning of its words," so that "only those acts ought to be crimes which were plainly so labeled."[44] The desymbolization of the law—and the new, invisible forms of discipline that it occasioned—is the subject of Foucault's Discipline and Punish , a work that has inspired literary critics to see narrative fiction as one such form of discipline, functionally homologous to that of the school, the prison, and the police. This approach, which assumes a functional correspondence, a functional complementarity, between various social domains, is certainly one way to imagine the novel's historicity. And yet there is no reason why "complementarity" should be a privileged category of analysis and no reason why "society" itself should be thought of as a seamlessly functioning unit, a seamlessly integrated totality.[45] It is equally plausible to assume the opposite, I think, locating the novel's historical resonances not in its full complementarity to


other social forms, but in its incomplete alignment. What is especially worth investigating, from this perspective, is the possibility of an alternative form of justice in the novel: a different order of signification flowing from an actual offense to its intimated prohibitions and a different order of satisfaction (or lack of satisfaction) flowing from the act of punishment itself.

In short, what I want to elaborate here is something like a theory of "uneven development," a theory about law and literature as institutions historically oblique to each other, marked by a historical noncoincidence of boundaries, boundaries of signification as well as boundaries of satisfaction. Because "crime" retains a signifying fluidity in the novel, what prevails here is definitely not the path of the law but something more like a semantic "field": a field of the reprehensible, specified as well as adumbrated, encompassing and interconnecting a range of signifying registers. As in an echo chamber, crime here sets into motion a far more complex series of resonances than in criminal law. It bodies forth an entire spectrum of prescriptions and proscriptions, some having to do with the law and others not. It speaks to anxieties explicit and implicit. Given this signifying latitude, the justice that the novel dispenses is also "justice" stretched almost to its breaking point: stretched not only to accommodate retributive justice, an order of justice affecting one particular offender, but also to accommodate distributive justice, an order of justice affecting many diverse persons and assigning to each a due share of burden and benefit. Indeed, not the least interesting feature of the novel is the slippage that it effects between these two senses of justice—between a general problem of commensurability in collective life and a specific problem of commensurability in personal conduct—a slippage that, in making an issue out of the very meanings of the commensurate, in calling attention to its very ground of being, would also end up making it the most precarious of concepts: most fantasized and most fantastical.

Nowhere is the expansive scope (and problematic commensurability) of the novel more striking than in the "justice" it metes out to its female characters, which, in its punitive zeal no less than in its signifying instability, might be thought of as a distinctly novelistic effect, an effect growing out of its language of gender. That language, Nancy Armstrong has argued, is very much the novel's invention, at once its normative voice and its regulatory instrument.[46] Certainly,


among its punitive conventions we find a language not only explicitly sexualized, but sexualized in such a way as to dramatize the bounds of propriety and to penalize any overt or covert infractions. The language of gender carries not just the usual symbolic freight but symbolic freight of a particularly incriminating nature. In fact, we need only look at the harsh fate visited upon the heroines of the nineteenth-century novel, from Hester Prynne to Hetty Sorrel, to be impressed not only by the punitive zeal at work but also by the extent to which that zeal is sexually predicated, the extent to which novelistic justice is gendered justice.

Gendered Justice: The Deerslayer

Within this punitive tradition, James Fenimore Cooper's The Deer-slayer (1841) must stand as an exceptionally salient example. "We live in a world of transgressions," the novel concludes, "and no pictures that represent us otherwise can be true," even though we do sometimes catch "gleamings of that pure spirit" among corrupt humanity, "mitigating if not excusing its crimes."[47] "Crimes" are definitely a key issue in the novel, and if the fate of its chief criminal, Judith Hutter, is any indication, so too is punishment. For Judith is emphatically punished, emphatically rejected by Natty Bumppo, the man she shamelessly hankers for and shamefully fails to get. As Cooper's many authorial comments make clear, that punishment is not at all an after-thought, a mechanical contrivance, or a random occurrence, but the central burden of the novel. In the preface, he characterizes his heroine as one "filled with the pride of beauty, erring, and fallen." His hero, Natty Bumppo, on the other hand, is known "principally for his sincerity, his modesty, and his unerring truth and probity." Between the "erring" woman and the "unerring" man, one manifestly "fallen" and the other manifestly not, the outcome seems predictable enough. Here, "beauty, delirious passion, and sin" will all come to nought, and the retribution visited upon them, the author assures us, will "be sufficiently distinct to convey its moral" (v).

The unabashed presence of the word "sin" (and its conspicuous placement in the preface) gives a hint of the novel's punitive flavor. That hint is more than confirmed by the end of the book, as Cooper issues a clear verdict, a clear indictment of the Hutters and their "history of crime":


Time and circumstances have drawn an impenetrable mystery around all else connected with the Hutters. They lived, erred, died, and are forgotten. . . . The history of crime is ever revolting, and it is fortunate that few love to dwell on its incidents. The sins of the family have long since been arraigned at the judgment seat of God, or are registered for the terrible settlement of the last great day. (533)

With a semantic latitude strikingly reminiscent of colonial usage, Cooper puts on trial not only "crimes" but also "sins," as if the two were synonymous (throwing in, for good measure, the word "err," clearly a favorite of his and apparently to be equated with the others as well). The imprecision here is telling, and tellingly evocative of a punitive universe in which the boundaries between the moral and the legal, between "sin" and "crime," remain as yet undemarcated, as yet elastic and commingling. Crime is a hospitable category here. Within its precincts we find not a single individual (as Cooper's account of his "fallen" heroine might have led us to believe) but the Hutters as a unit, the whole family apparently qualifying for that label. Not just Thomas Hutter, a former pirate, but also his wife, a fallen woman like her daughter Judith, and not just Judith herself, but also her half-witted sister, Hetty—these four figures, otherwise quite different, nonetheless seem united in their joint culpability, in what Cooper generically calls "the sins of the family."

In what sense might the Hutters be understood as a culpable unit, as a family of sinners? Since it is their common guilt that the novel emphasizes, we might do well to ponder their crimes in generic terms. To be sure, Thomas Hutter was once a pirate, and his sins might have been crimes even in a legal sense; and Judith, a fallen woman, has of course sinned in the most time-honored fashion. Still, beyond these discrete categories of offense, something more encompassing and perhaps more deep-seated remains. Indeed, given the Hutters' kinship in crime (not to say kinship in punishment), we should perhaps be alert to a curious coincidence here between the kinds of "sins" the Hutters are said to have committed and the kind of family they represent: a coincidence between their profile as sinners and their profile as a familial unit.

What kind of family are the Hutters? Once we put the question that way, it becomes immediately clear that something is wrong not just with the Hutter family but with them as a family . This is a family that turns out not to be a family after all, as Thomas Hutter is revealed


to be quite a stranger to his putative daughters. Judith, one of those daughters, is overjoyed at this turn of events. "I scarce know by what name to call myself now!" she exclaims with some delight. "I am Judith, and Judith only, until the law gives me a right to another name. Never will I use that of Thomas Hutter again" (403). Judith's name and, by extension, her family are now matters of her own choosing. As she explains to Hetty: "You and you only are my sister . . . and Mother was my mother—of that, too, am I glad and proud, for she was a mother to be proud of—but Father was not father!" (361)

For Judith, the unfathering of Thomas Hutter brings only elation. Hetty, in contrast, is quite distressed. If fathers can stop being fathers—if one familial identity can dissolve so completely into thin air—what is there to prevent other identities from following suit? What is there to prevent sisters, for example, from being turned into total strangers?

"How do I know, Judith, that you wouldn't be as glad to find that I am not your sister as you are in finding that Thomas Hutter, as you call him, was not your father? I am only half-witted, and few people like to have half-witted relations; and then I'm not handsome—at least, not as handsome as you—and you may wish a handsomer sister." (361)

Hetty's worries here are local and personal, but they give voice as well to a more general anxiety, general to the modern form of life, with its emphasis on elective identities and voluntary attachments. Based not on inherited lineage but on individual choice, not on blood but on "wishes," this modern form of life challenges the very taxonomy of the traditional order, its grounds for classification as well as for association. In the Hutter family that ceases to be a family, we see, dramatized in caricature, the historical shift from parental control to filial autonomy, from a classical world of organic kinship to a liberal society of self-making.[48] What Cooper collectively condemns in the Hutters—what he denounces as the "sins of the family"—might also be understood, then, as their sin against the sanctity of hereditary estates, which is also to say, their sin against an ascriptive social order.

Sins of this sort do not go unpunished, and, in this case, the wages of sin suitably mirror the sins themselves. Having disowned one parent, however undesirable, and repudiated one identity, however in authentic, Judith is now in danger of being left with no father at


all and no identity to speak of. Nor is she unforewarned. Her lack of filial regard has shocked even Hurry Harry, the most mindless of characters, into a kind of blind prophecy: "Not Thomas Hutter's darter! Don't disown the old fellow in his last moments, Judith, for that's a sin the Lord will never overlook. If you're not Thomas Hutter's darter, whose darter be you?" (349).

The question is ominously put. And lest we miss the point, Cooper hastens to tell us, even more ominously, that "in getting rid of a parent whom she felt it was a relief to find she might own she had never loved, [Judith] overlooked the important circumstance that no substitute was ready to supply his place" (349–350). One might point out, of course, that it is not really Judith's fault not to have found a substitute for Thomas Hutter; she certainly tries hard enough. Her mother has made it impossible for her, having made sure that "all the dates, signatures, and addresses had been cut from the letters. . . . Thus Judith found all her hopes of ascertaining who her parents were defeated" (400).

But the mother has "defeated" the daughter in a less tangible way as well. Judith's problem, after all, is not so much that she has failed to find a father as that she has never had one she can claim . Her problem is not unverifiable genealogy but all too verifiable bastardy. Still, this handicap notwithstanding, it is not inconceivable that Judith could have found a substitute for Hutter, not by discovering a true father but by acquiring a true husband, who, in giving her his name, would have bestowed upon her what her own father had withheld. But, as we know, this "substitute" too is not Judith's to have. In the last paragraph of the book, we are treated to a curious bit of rumor about Sir Robert Warley, Judith's paramour: that he now "lived on his paternal estates and that there was a lady of rare beauty in the lodge who had great influence over him, though she did not bear his name" (534).

Judith's crime is the crime of anonymity, we might say. She is the leading offender, but she is not alone. Indeed, her crime is such that we can safely assume a host of accomplices and a host of precursors. The illegitimate daughter of one man, Judith will in time become the illegitimate consort of another man. She is the daughter of a sinning mother, and she will grow up to sin in exactly the same fashion. Sin here is generic and periodic, a family romance, a phenomenon hereditary and repeatable. Such a criminal sequence rests on a kind of gener-


ational fungibility, equating father and husband, givers of names who withhold what they have to give, and mother and daughter, bearers of names who fail to receive what they are obligated to bear. It is surely appropriate (if not downright heavy-handed) that Judith should be named after her mother: she is a second Judith, a replication of the first.

Judith's sin, then, is neither local nor unique. It is exemplary and synecdochic, it beckons backward and outward, compounding and compressing into its orbit the sins of others. Nor is the transgression here purely sexual, however convenient a label that might afford. Indeed, just as Judith might be said to stand in for a family of sinners, so her misdeed would also seem to encompass a spectrum of the reprehensible. No longer a maiden but not yet a wife, she has forfeited not just a proper sexual identity but any identity at all. And as the novel administers to her a suitable dose of punishment, it also chastises, through her example, a cluster of offenses having generally to do with the problem of identity: not just the misadventures of the sexual persona but also the vicissitudes of the social persona, not just deviation from sexual purity but also ambition in social mobility.

Crime as a Signifying Field

Judith's sexual failing is a figure of speech, then, a kind of punitive shorthand, where novelistic sanction is meted out both literally and vicariously, both to a specific crime plainly so labeled and to an unspecified range of guilty cognates. We might think of it as a point of metaphoric inscription, and it is helpful to remind ourselves of its adumbrative and substitutive relation to other signifying categories. Eve Kosofsky Sedgwick has observed that "the subject of sex [is] an especially charged leverage-point, or point for the exchange of meanings, between gender and class."[49] Eva Kittay, writing more generally about metaphor as a cognitive principle, has argued that the exchange of meaning that it brings about is not just between two discrete terms but between two semantic fields, two domains of meanings, the structural properties of one being transposed upon the other.[50] This "field theory" of metaphor helpfully elucidates the punitive workings of the novel, for it is this confluence of semantic fields—the multiple inscription of prohibition and penalty—that gives rise not only to the jurisdictional scope of the novel but also, I would


argue, to its peculiar harshness, its punitive zeal toward its signifying criminals.

It might seem odd to speak of the punitive as a signifying field, and yet Emile Durkheim, linking penal law to a residual religiosity, has alerted us to just this "metaphorical" dimension in crime and punishment (although, as he also says, "the metaphor is not without truth").[51] A crime is always "an offense against an authority in some way transcendent," Durkheim argues, and in avenging a wrong, in demanding that "the culpable ought to suffer because he has done evil and in the same degree," we are propelled by "an echo in us of a force which is foreign to us, and which is superior to that which we are."[52] As the enforcement of an "echo," punishment is symbolic and projective. Inscribed within its executed particular is always a broader, higher frame of reference, a broader, higher order of meaning.[53]

This appeal to a transcendent ideal is certainly true of the Kantian retributionists, who demand punishment in the name of justice. And with slight modification it is true even of Kant's adversaries, the utilitarians, who, in making "social utility" the ground for punishment, in effect turn that into a higher principle, not unlike "justice" in Kant. Punishment for the utilitarians (as we have seen in Beccaria) is thus strictly a means to an end, the particularity of each case being harnessed always to the supreme goal of crime prevention. As Bentham says, the "first object" of punishment is "to prevent, in as far as it is possible, and worth while, all sorts of offences whatsoever; in other words, so to manage, that no offence whatsoever may be committed."[54] For him as for Beccaria, punishment is not so much an act of reprimand as an act of preemption: it addresses not the accomplished deed but contemplated misdeeds, not the actual criminal but potential offenders. Bentham thus insists on the "exemplarity" of punishment, for "example is the most important end of all, in proportion as the number of the persons under temptation to offend is to one ." And, as he further argues, "there is not any means by which a given quantity of punishment can be rendered more exemplary, than by choosing it of such a sort as shall bear an analogy to the offence."[55] The criminal is punished primarily as a sign, then, a salient example, condensing and displaying in his person an entire structure of prohibition. And, as a sign, he is posted mostly for the benefit of others, held up to serve them due warnings.


But as Bentham is the first to recognize, exemplary punishment can lead to excess, to a profligacy in signification, as it were. It is not surprising that immediately after his discussion of exemplarity, he should come up with a section on "frugality" (on the importance of not "produc[ing] any such superfluous and needless pain"), followed by another section in which he gingerly considers "exemplarity and frugality, in what they differ and agree."[56] Indeed, for all its talk about the salience of example, The Principles of Morals and Legislation (1789) is deeply committed to frugality as the law's operative principle. And so Bentham begins his discussion of penology with a chapter on "Cases Unmeet for Punishment" and concludes with a chapter on "The Limits of the Penal Branch of Jurisprudence"—thus anticipating, by more than a century, Oliver Wendell Holmes's recommendations in "The Path of the Law."[57] In the course of that intervening century, as criminal law became more and more frugal in its semantics, the luxury of signification became more and more a residual privilege of the novel. Here, then, is one instance of the uneven development between law and literature, although I should also add that such an unevenness is never quite absolute. Against the novel's semantic latitude, so continually in evidence, we should perhaps remind ourselves of a residual latitude in criminal law as well, an unacknowledged but perhaps unavoidable tendency to signify beyond its strict constructions, which suggests that even within its august precincts, a "crime" is never simply a given, external to or antecedent to its verdict, but is rather a semantic effect, given meaning by the very process of judgment.

This is not just a fanciful way of putting things. Some serious consequences follow, I think, from seeing crime as a semantic effect, shaped by the categories by which it is apprehended and represented. Indeed, if the debate among legal scholars is any indication, the very authority of criminal law—its claim to neutrality and rationality—would seem to rest on whether "crime" is to be understood as a substantive or interpretive phenomenon, whether it is seen as an autonomous given, with an objective existence in the world, or whether it is seen as a textualized effect, constituted by a meaning-giving procedure. Mark Kelman has argued, for example, that legal reasoning in criminal law is both propelled and constrained by its "interpretive constructs," which, by adopting a variably broad or narrow time frame with regard to causal antecedents and a variably broad or nar-


row compass with regard to intent, in fact prejudge the issue, since the verdict arrived at is a foregone conclusion given the choice of certain criminal law categories.[58] Kelman does not use the phrase "signifying field," but he might well have, because what he seems to be suggesting is that the criminal law can assign blame only by constructing its object as a legally meaningful object, the legal meaning here being strictly an effect of the temporal and spatial grid which composes the event, which defines not just its veracity but its very content and character. Given the priority of these general legal categories over each particular crime, the assignment of blame would appear to be procedurally weighted, procedurally overdetermined, and the entire system of criminal justice might begin to look like something that is itself criminally unjust.[59]

I mention Kelman at some length, partly to indicate the high stakes involved in speaking of crime as a signifying field, but partly also to distinguish my approach from his. Kelman is primarily concerned with the ground of judgment, or the lack thereof. Focusing on the "interpretive constructs" in criminal law, he calls into question its objective foundation, its descriptive transparency and adjudicative rationality. My chapter builds on his insight but reverses his direction of inquiry. Conceding at once that any verdict is interpretive, that it is enacted through a process of textualization and thus always semantically overdetermined, I want to focus all the same not so much on its arbitrary ground as on its abundant figures . What concerns me is the range of symbolic inscriptions brought into play by a particular act of judgment, the wealth of referents encoded in a seemingly discrete offense. Such a focus might seem unduly aesthetic, in a context where perhaps ethics alone ought to matter. And yet in the long run, the aesthetics of crime—its constitution as a signifying field and the semantic excess that accompanies that constitution—must end up leading us back to the question of ethics, must end up casting doubt not only on any particular instance of punishment but also on that higher idea which underwrites it and which it incessantly echoes: the idea of justice itself.

This much said, we can perhaps return to Judith, that signifying criminal, and to her crime, the crime of anonymity. If she is indeed a sign, what family of crimes does she stand for? What patterns of prohibition are adumbated by her specific instance of punishment, what clusters of social meanings are encoded, elaborated, vicariously af-


firmed? We might begin to answer these questions by circling back to the "crime of anonymity" itself, which, as it turns out, is not at all unique to Judith. Indeed, E. P. Thompson has discussed an entire category of offense under that label, and it is helpful here to recall the sense of his initial usage. By the "crime of anonymity," Thompson refers to a phenomenon common in eighteenth-century England, the writing and sending of anonymous letters, usually from the lowly to the exalted, letters variously salacious, rambunctious, or plain extortive. According to Thompson, such crimes were especially prevalent in a stratified society, a society of ascriptive estates, which, "in myth if not in actuality, rested upon relations of paternalism and deference." In such a world, where social distinctions were both customary and compulsory, norms of conduct depended entirely on the denomination of identity. A proper name not only indicated who one was, it also indicated what was proper to one's social station. Crimes of anonymity were deeply unsettling (and were treated as a capital offense) for that very reason. As Thompson says, "anonymity was of the essence of any early form of industrial or social protest," because (or so it seemed to eighteenth-century Englishmen) to refuse denomination was to reject the norms of social estate.[60]

Judith, of course, is neither so political nor even so purposeful in her crime of anonymity. Still, it is worth noting that even in her case, names are intimately bound up with social station and social entitlement. She is glad to be temporarily without a name—to be "Judith, and Judith only"—because Hutter's name seems so clearly beneath her. He is a "coarse and illiterate" man; his marriage to her mother was a "horror," the two being "an ill-assorted pair," she being in "every way so much his superior" (399). The name "Hutter" ill becomes the mother, and, by the same token, it ill becomes the daughter as well. Judith's problem, a lifelong one apparently, is to find a last name that would consort equitably with the first, a last name that would give her a denotative parity.

Nor is Judith altogether without choice in this matter. Indeed, at various points the narrative teases us with the possibility of her finding a nomenclatural partner, even going so far as to couple her name with another name, holding up the compound as if to test for fit. The fit is not always ideal, however, as Judith is the first to notice. "No—no—Judith without a name would never consent to be called Judith March! Anything would be better than that !" she exclaims at one


point. She can afford to be firm there, because a more suitable name seems to be awaiting her, and she is not too shy to tell its owner, "the name is a good one; either Hetty or myself would a thousand times rather be called Hetty Bumppo or Judith Bumppo than to be called Hetty or Judith Hutter" (409, 405).

Natty is not so sure. He points out, reasonably enough, that the proposed names are "a moral impossible, unless one of you should so far demean herself as to marry me." And, so as not to be uncivil, he adds, "There's been handsome women, too, they tell me, among the Bumppos, Judith, afore now, and should you take up with the name, oncommon as you be, in this particular, them that knows the family won't be altogether surprised." In spite of such encouragement, however, the name "Judith Bumppo" is actually unthinkable, and for obvious reasons. Natty, however, offers a kinder and gentler excuse: "Judith, you come of people altogether above mine in the world, and onequal matches, like onequal friendships, can't often tarminate kindly" (405, 411). Judith and Natty would have been an "illassorted pair," not unlike Judith's mother and Hutter, since she too is "in every way so much his superior." Of course, Judith is not the one to raise any objections now, but the objections are raised for her and, we might add, against her. As a fallen woman she is manifestly not good enough for Natty; as the offspring of people "altogether above [him] in the world" she is manifestly too good for him. Sexual propriety and social station are inversely symmetrical here, in such a way as to bring about a curious alignment between being "too good" and being "not good enough." Judith is unacceptable on both counts, and it is now incumbent upon her to find a name she is neither above nor beneath, but perfectly equal to.

Equality Republican and Liberal

Judith's search for a proper name is not just a search for legitimacy in marriage—a search conducted under the auspices of sexual propriety—but also a search for a proper place in the social hierarchy, a search conducted, surprisingly, under the auspices of marital equality. Equality is the ideal invoked here, invoked as the basis for conjugality. Nor is Cooper alone in this particular, for, as Jan Lewis points out, the ideal of a "symmetrical marriage"—a marriage of equal partners—was an integral feature of classical republicanism, widespread


in the early republic.[61] More recently, Rosemarie Zagarri has traced this republican ideal to the influence of the Scottish Enlightenment (although, as she also points out, the espousal of such an ideal, with its emphasis on marital equality, also "effectively negated the possibility of political equality").[62] In any case, in the late eighteenth and early nineteenth centuries, marital equality was a subject weighty enough to be discussed by the likes of John Witherspoon, president of Princeton. A frequent contributor to Ladies Magazine and Pennsylvania Magazine (edited by Tom Paine), Witherspoon counseled that "a parity of understanding and temper [is] as necessary towards forming a good marriage, as an equality of years, rank, and fortune."[63] Numerous other magazine articles offered the same advice. It is not surprising, then, that in The Deerslayer inequality should be held up as the principal obstacle to a proposed marriage. In fact, on those grounds Natty is moved to reject not one but two such unacceptable proposals: not just an "onequal match" with Judith but another match, also unequal, with Sumac, widow of the recently killed Le Loup Cervier, who demands marriage even more vehemently. But, as Hetty observes, "Sumac is old and you are young," and, as Natty himself observes, "she's red and I'm white." Such a flagrant violation of equality makes death "more nat'ral like, and welcome, than wedlock with this woman" (473).

Equality, invoked as a marital ideal, foregrounds race as the ground of incommensurability.[64] It also foregrounds class. The social rankings of the marriage partners are very much at issue here, for paradoxically it is only by settling the question of rank—only by fixing upon one particular class to which both partners belong—that the marriage can be deemed equal. To give the paradox an even sharper edge, we might say that the ideal of marital equality proceeds from the fact of social hierarchy. It does not so much eliminate the concept of social station as accentuate it. Equality is a sorting principle here—it matches like with like—and, as such, it sets the protocol not only for gender relations but also for social distinctions. It is in this context, in the convergence of gender and class under the norm of equality, that proper names would come to figure so largely in the novel: they figure, above all, as signs, signs of something gone awry and of an ensuing sequence of retribution. Judith's lack of a name, her desire for one and her failure to get one, thus compresses into a single detail the punitive weight of two semantic fields, gender and class, joining


both to a common purpose, mapping the lineaments of one onto the countenance of the other. That twofold verdict brings to the novel something like a twofold severity, a passion for justice redoubled in strength, and redoubled in its operative radius.

Nor is this punitive fervor at work only in the name Bumppo. Judith is deemed unequal to, and therefore unworthy of, another name as well. Captain Warley, the owner of that other name, makes it clear why that is so. She is "a lovely creature, this Judith Hutter," he concedes, but, he hastens to add, "I do suppose there are women in the colonies that a captain of light infantry need not disdain, but they are not to be found up here on a mountain lake" (511). The dalliance between Judith and Warley is glaringly, scandalously an "association between superior and inferior" (151), which is why the name "Judith Warley" is also glaringly, scandalously unimaginable in The Deerslayer . Unlike the other two names, "Judith March" and "Judith Bumppo," names tantalizingly held up for our appraisal, this one is not even allowed to materialize on the page.

Still, Judith is by no means an uncouth or ill-favored person vainly aspiring to a social station that is manifestly beyond her. If she is indeed an "inferior," as we are told, that inferiority is not at all self-evident. Quite the contrary. Judith is fastidious, overly fastidious, both in appearance and demeanor. "Her language [is] superior to that used by her male companions, her own father included." It displays no "mean intonation of voice, or a vulgar use of words." Indeed, "the officers of the nearest garrison [had] often flattered [her] with the belief that few ladies of the towns acquitted themselves better than herself in this important particular" (134–135). Judith's refined speech is an enviable asset, a sign, one would have thought, of her social elevation. After all, in The American Democrat (1838), Cooper had suggested that "a just, clear and simple expression of our ideas is a necessary accomplishment for all who aspire to be classed with gentlemen and ladies."[65] Judith's problem (an unforgivable one for Cooper, it appears) is that she talks like one of the "gentlemen and ladies" when she is in fact not one of them. She is an inferior who commands a superior manner of speech, a sign that deceives the beholder, signifying status and refinement where it ought to have signified ignorance and backwardness.

As a delinquent sign, one far in excess of its referent, Judith might


be said to have transgressed against the very idea of the commensurate. This crime makes her equal to no one, least of all herself. She is both above and beneath any given identity, both superior and inferior, a predicament which, under a regime of marital equality, must also make her sadly unmatchable. It is tempting here to describe her in the idiom of Arnold van Gennep and Victor Turner: she is a "liminal" character, caught "betwixt and between all the recognized fixed points . . . of structural classification," someone who is "neither one thing nor another," "neither here nor there," "at once no longer classified and not yet classified."[66] The vocabulary of liminality almost describes Judith, but in one crucial respect it does not, and it is instructive to see why. The liminal person for van Gennep and Turner is not so much a deviant as a truant, a figure caught in transit, as it were, between normative states, but whose progress is such as to ensure an eventual restitution of the boundaries he or she momentarily ruptures. Judith's truancy has no such terminal limit, and no such teleological guarantee. She will always remain "betwixt and between," always "no longer classified and not yet classified."

Judith is not a liminal person; she cannot be one, because there is no final resting place for her, no stable identity into which she might be inducted, no encompassing "structure that defines status and establishes social distance."[67] To say this is also to say that there is a world of difference between the society Judith inhabits and the stable tribal society described by van Gennep and Turner. Indeed, we might even say that what van Gennep and Turner take to be a structural aberration is in her world the norm. And so, the problem of equality—the problem of being commensurate, either with oneself or with someone else—turns out to afflict not just Judith but virtually everyone in the book. Pervading The Deerslayer , indeed, is something like a thematization of that problem, a thematization that gathers force as each character subjects everyone else to yet another ranking, putting this person above or beneath that person, trying to ascertain who is equal to whom. And since the verdict changes from moment to moment and indeed from judge to judge, its sentencing power resides not so much in its finality as in its endless reversals.

A brief conversation between Hutter and Hetty, for example, illustrates just how severe the problem of equality is and how intimately it structures every person's sense of self as well as sense of others:


"You're by no means ugly, though not so comely as Jude."

"Is Judith any happier for being so handsome?"

"She may be, child, and she may not be. But talk of other matters, now, for you hardly understand these, poor Hetty. How do you like our new acquaintance, Deerslayer?"

"He isn't handsome, Father. Hurry is far handsomer than Deerslayer." (83)

In the space of a few lines, two different sets of people have been brought forward to be ranked, and two different sets of criteria have been invoked to facilitate that ranking. High marks in the department of beauty by no means translate into high marks in the department of happiness; this much even Hutter concedes. This drawback, however, does not prevent either term from generating an evaluative frenzy of its own. "Not as comely," "happier," "far handsomer"—these distinctions are all the more insistent for being incommensurable. Hutter, for example, offers beauty as the standard of judgment, which puts Judith considerably ahead of Hetty. Hetty, however, counters with a different standard—happiness—and on that count Judith does not fare quite so well. And yet, when Hetty herself proceeds to rank Hurry Harry and Natty, she abandons happiness as a criterion and returns to the earlier term, beauty, in order to pronounce Hurry the better of the two.

Social identities in The Deerslayer are judged by a profusion of terms, which, unfortunately, make ranking not easier but shakier. To return to the vexed question, for example, about the relative standing of Judith and Natty, how is one to decide? Natty, of course, has announced that Judith is "altogether above" him, but things are actually not so clear. Judith herself, for instance, far from agreeing with him, fancies herself quite his inferior. "But we are not altogether unequal, sister—Deerslayer and I?" she asks Hetty. "He is not altogether my superior?" Equality—between herself and Natty—is a burning question for Judith, and, working herself into a mania, she will go on to ask that question three more times in the course of the same conversation. "Why do you think me the equal of Deerslayer?" she asks Hetty again. And then again, "Tell me what raises me to an equality with Deerslayer." And finally, not satisfied with Hetty's answer, she asks yet again, "But I fear you flatter me, Hetty, when you think I can be justly called the equal of a man like Deerslayer. It is true, I have been better taught; in one sense am more comely; and


perhaps might look higher; but then his truth—his truth—makes a fearful difference between us!" (302).

Judith is comically obsessed here, but in a way she is simply doing to herself (and to Natty) what everybody else has been doing throughout the book. She is ranking the two of them, and doing so through a profusion of terms—"better taught," "more comely," "look higher"—as intransigent as they are incommensurable. And the effect, once again, is to multiply the instances of inequality, making it more flagrant, more entrenched. As far as Judith is concerned, for example, literacy and good looks carry some weight, but "truth" carries infinitely more, so much more that it tips the balance altogether. Hetty, of course, disagrees. She is flabbergasted, in fact, that her sister would even entertain the thought of not being equal to Deerslayer. "To think of you asking me this, Judith!" she exclaims:

"Superior, Judith!" she repeated with pride. "In what can Deerslayer be your superior? Are you not Mother's child—and does he know how to read—and wasn't Mother before any woman in all this part of the world? I should think, so far from supposing himself your superior, he would hardly believe himself mine . You are handsome, and he is ugly—"

"No, not ugly, Hetty," interrupted Judith. "Only plain. But his honest face has a look in it that is far better than beauty. In my eyes Deerslayer is handsomer than Hurry Harry."

"Judith Hutter, you frighten me! Hurry is the handsomest mortal in the world—even handsomer than you are yourself." (301)

Who is equal to whom? The question obsesses everyone, but Natty, Judith, and Hetty all seem to have different answers. With breakneck speed, the terms for comparison shift and the partners for comparison multiply. It is not just Judith and Deerslayer who are being ranked now, but also Hurry and Deerslayer, and then Judith and Hurry. One thing is clear, though, in this pandemonium: with each fresh ranking, it becomes less and less likely that those ranked will ever be found "equal" to one another. Here then, dramatized and perhaps ironized, is something of a cultural crisis—something like a crisis of equality—in which personal identities, evaluative norms, and social distinctions are all endlessly fluctuating, endlessly in transit. What is liminal, it would seem, is not so much one particular individual as the entire social structure.[68]

The "liminality" of nineteenth-century America is a commonplace


among historians, of course.[69] Here, I want to associate it more specifically with a moment of transition from the eighteenth to the nineteenth century, from the highly rationalized political culture of classical republicanism to the increasingly unrationalizable political culture of modern liberalism. Such a transition, I argue, put a new premium on the idea of equality, giving it a strongly individualistic accent, and, in thus wrenching it from the fabric of republican thought, also transformed the concept, bending it out of recognition and perhaps out of its original coherence.

Gordon Wood has described this transition, in a celebrated phrase, as "the end of classical politics." "The eighteenth century had sought to understand politics," Wood writes, by appealing to "a graduated organic chain in the social hierarchy."[70] Classical republicanism celebrated hierarchy—not as the distinguishing mark among individuals, but as the operative condition for a civic order. For as J. G. A. Pocock points out, a healthy polity could come about only with organic gradations, only with a "naturally differentiated people" "performing complementary roles and practicing complementary virtues."[71] Complementarity was the operative tenet of a republican order, and, to the extent that complementarity meant the joint workings of un equal subjects, inequality was not at all a problem here. It was not a problem because it could be rationalized by politics, rationalized by republican institutions, so that rather than sowing the seeds of discord, it instead furnished the structural grounds for civic participation. For as Pocock also points out, classical republicanism did not presuppose a general equality among its citizens; it only legislated a specific political equality, "an equal subjection to the res publica ." The political sphere, in other words, was the unifying ground, the ground of commensurability for citizens unequal in every other respect, for even "though by any standard but one, the shares accorded each were commensurate but unequal, there was a criterion of equality (in ruling and being ruled) whereby each remained the other's equal."[72] To simplify Pocock's complicated argument (and bedeviling prose), we might say that in classical republicanism, equality was defined as an effect of the polity—an effect of its rational order—and in that sense was both independent of and emendatory to the actual existential condition of its citizens. "Commensurate but unequal" was not at all oxymoronic in this world, for commensurability, understood as an


institutional edict, could stand, in its very institutionality, as the rational ground subsuming and absorbing the brute fact of unequal distribution.

Decline of Political Rationality

What Woods calls the "end of classical politics" marked the breakdown of this political rationality. "The American Revolution introduced an egalitarian rhetoric to an unequal society," J. R. Pole sums up with admirable succinctness.[73] The complex accommodation between political equality and distributive inequality, once the working paradox of the republican order, now became the fault line along which the entire polity threatened to come apart. The egalitarian rhetoric which had once united the "oppressed" colonies against the "tyranny" of their British rulers was now directed inward, and, applied to the new nation, it quickly revealed the same drama of tyranny and oppression. And so civil society was now seen no longer as a rational entity, a "graduated organic chain" dedicated to the common good, but as a factious conglomerate, torn by competing interests. And to the extent that these competing interests were reproduced on the level of popular government, the political sphere itself was transformed into the home of furor and passion, rather than the home of reason and justice. For as Madison somberly noted in his famous entry (no. 10) to The Federalist , political equality was no longer an adequate answer to the "unequal distribution of property," no longer an adequate check on its cankerous passions:

Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths. Theoretic politicians, who have patronized this species of government, have erroneously supposed that by reducing mankind to a perfect equality in their political rights, they would at the same time be perfectly equalized and assimilated in their possessions, their opinions, and their passions.[74]

In short, for Madison, the political sphere was no longer the ground of commensurability, no longer the seat of a rational order. It had been corrupted, instead, into a passional arena, overrun by "impulses of


rage, resentment, jealousy, avarice, and other irregular and violent propensities," and given over to "ruinous contentions," as Alexander Hamilton also noted.[75]

Hamilton was writing in the aftermath of the 1786 Shays's Rebellion, which he identified by name.[76] That event seemed to epitomize the irrational nature of democracies, their tendency toward "ruinous contentions," for its participants, to the horror of all, were revealed to be not dyed-in-the-wool ruffians but ordinary farmers in distress, led by none other than a former militia captain. The rebels were put down, but, again to the horror of all, they were able to recoup in a matter of months under a new tactic, namely, by "promot[ing] their views under the auspices of constitutional forms," as Madison bitterly observed.[77] Those constitutional forms proved so hospitable that they were soon in a position "to establish iniquity by Law."[78] Such atrocities dramatized the extent to which the political sphere had been corrupted, transformed from the rational ground of a republican order into a theater of the absurd.[79] They also dramatized the extent to which the idea of equality itself had been redefined: from a republican to a liberal idea, from civic participation to personal entitlement, from a question of political rationality to a question of individual parity.[80]

The exact nature of the political changes in the late eighteenth and early nineteenth centuries is of course a much disputed issue. Inspired by the work of Bernard Bailyn, J. G. A. Pocock, and Gordon Wood, historians have engaged in a long and heated debate over the relative centrality of classical republicanism and modern liberalism in the early republic.[81] Without being unduly partisan, it is possible, I think, to argue for a new orientation beginning in the 1780s, moving away from the "republican" view of the polity as differentiation for the common good toward a modern "liberal" view, with its emphasis on differentiation as an individuating principle, a principle of centrifugal desires. Liberalism, John Rawls writes, affirms a "plurality of distinct persons with separate systems of ends."[82] This is what makes liberalism compelling and problematic in the twentieth century, as it was compelling and problematic in the nineteenth. And most problematic of all was, and is, the idea of commensurability, given the "plurality of distinct persons." Since commensurability would now have to be defined as equality, and since equality itself would have to be defined as a distributive category—distributing unequal resources


through equal individuation—the liberal idea would seem to have embodied at its core a logical incoherence, thrown into ever sharper relief by an ever growing plurality of claims.[83] If "commensurate but unequal" was the paradox of classical republicanism, "equal but incommensurate" might turn out to be the curse of modem liberalism.

Modern liberalism was, to be sure, neither full-blown nor even fully articulated at the end of the eighteenth century. Still, by 1794 the problem of equality—and its vexed relation to individuation—had become so acute that Samuel Williams, historian of Vermont, was moved to offer the following attempt at synthesis:

[Americans] all feel that nature has made them equal in respect to their rights; or rather that nature has given to them a common and an equal right to liberty, to property, and to safety; to justice, government, laws, religion, and freedom. They all see that nature has made them very unequal in respect to their original powers, capacities, and talents. They become united in claiming and in preserving the equality, which nature has assigned to them; and in availing themselves of the benefits, which are designed, and may be derived from the inequality, which nature has also established.[84]

Nature, that time-honored oracle, seemed more than a little confused here, wavering as it did between an egalitarian theory of rights and a hierarchizing theory of talents. No wonder the author, Samuel Williams, wrote with some confusion himself. Paying his respects, on the one hand, to the newly sanctified tenets of individual equality, Williams seemed to have one foot firmly planted in the liberal landscape. Convinced, on the other hand, that "benefits" were to be "derived from inequality," he seemed to be looking backward to a republican universe, "a graduated organic chain in the social hierarchy." Judging from this spectacle of divided allegiance, we can only agree with Lance Banning: "Logically, it may be inconsistent to be simultaneously liberal and classical. Historically, it was not."[85] However, even this formulation does not quite settle the problem, for to be "simultaneously liberal and classical" must entail a peculiar set of mental gymnastics, not to say a peculiar set of mental constraints. It must give rise, that is, to a peculiarly unstable notion of commensurability, at best supple and inflected, at worst punitive and repressive.

Cooper had no pronouncements as delicately balanced or as visibly perplexed as Williams's. Still, the problem of equality was important enough to merit two chapters in The American Democrat (1838), a


work also haunted by the exigencies of being simultaneously liberal and classical. True to the latter, Cooper observed, quite bluntly, that "the celebrated proposition contained in the declaration of independence is not to be understood literally. All men are not 'created equal,' in a physical, or even in a moral sense." And he went on (in a litany worthy of The Deerslayer ) to enumerate those items that made for hierarchical distinctions: "one has a good constitution, another a bad; one is handsome, another ugly; one white, another black[;] . . . one possessing genius, or a natural aptitude, while his brother is an idiot."[86]

Cooper's world remained—anachronistically—a republican universe, a graduated organic chain in the social hierarchy. Such organic gradations posed no threat to the idea of equality, for Cooper, true to his republican legacy, defined the idea strictly in political terms: not as an existential fact emanating from the individual, but as a legislative fact emanating from the polity. Equality, he argued, is simply the consequence of "a new governing principle for the social compact," so that "as regards all human institutions men are born equal." So far, Cooper would seem to be a quintessential (and belated) advocate of classical republicanism. And yet, writing as he did in 1838, he could no longer rest secure in his republican faith. Seeing political equality as an institutional artifact, he also saw it as a groundless artifact, for, as he said, "human institutions are a human invention, with which nature has had no connection."[87] Cooper's republicanism was thus republicanism infected with a liberal problematic: a republicanism that, in spite of its hopes in the structural rationality of the political order, nonetheless ended up doubting that political order, doubting its very ground of legitimacy. Here, then, was another way to be simultaneously liberal and classical. And just as Samuel Williams had previously ended up with a "nature" that spoke with a forked tongue, so Cooper's denaturalized polity also brought on something like a rationalizing crisis. After all, if equality is an artificial creation, not grounded in nature but legislated by man, what is there to give it a foundation, a sanctifying ground beyond its stipulated provisions? And if equality is "not to be understood literally" but to be taken rather as a figure of speech—a consensual metaphor instituted by a "social compact"—what is there to make that consensus absolute?[88] What is there to stop one particular individual from figuring equality in a different way? What is there to stop someone like Judith, for


example, from claiming that though she is not "literally" equal to Natty, she might nonetheless be deemed equal, deemed, in fact, marriageable to him?

Feminization of Virtue

On this point, however, The Deerslayer stands equipped with an answer. It is crucial then—crucial not just for the plot but for the general problem of commensurability—that Judith should be, as the preface says, "erring, and fallen." Where all else fails, the category of the fallen woman remains infallible. The strength of that category reconstitutes a signifying foundation, a consensual ground that seems not provisional but absolute, not legislative but natural, and makes it possible to say, with restored confidence, who is marriageable to whom and who is equal to whom. To say that is also to suggest that in The Deerslayer as in mid-nineteenth-century America, gender is a field of symbolic order: a field where meanings are affixed, identities rationalized, distinctions maintained. Female sexuality is not just a sign here, it is a sign whose referent has become so integral, and indeed so immanent, that it commands the stability almost of a natural fact. The distinction between a virtuous maid and a fallen woman is absolute and absolutely guaranteed, biology being adduced here as a kind of epistemological ballast.

The centrality of gender as a signifying field, then, would seem to stem from its capacity for naturalizing signs and hence its compensatory relation to other fields—for instance, the field of class, where signs are becoming newly unstable, newly denaturalized.[89] In the difficult transition from classical republicanism to modern liberalism, gender is invoked, above all, to restore a natural order to a newly denaturalized political order. Against the groundlessness of political institutions, gender works with the solidity of a natural fact. One knows exactly what it takes to be a fallen woman, what it means to be a fallen woman, and what will eventually happen to a fallen woman. And so in The Deerslayer , it is within the semantic field of gender that the idea of equality, elsewhere rendered so problematic, is reconstituted as a coherent notion. It does not matter that Judith and Natty are actually found to be unequal; this regrettable fact is acknowledged, even proclaimed, since its very regrettableness is a tribute to the idea of equality, all the more honored for being unattained. And just as


equality is affirmed here in its absence, what is affirmed in absence as well is a rational universe, "commensurate but unequal," in which human institutions can furnish a unifying ground for human differences. Such a universe, of course, no longer existed in the mid-nineteenth century, and no doubt it had never truly existed in that degree of perfection. Through the semantics of gender, however, it could at least be intimated, memorialized, symbolically restored. In this context, Raymond Williams's idea of the "dominant, residual, and emergent" must be broadened to include gender as a primary site of residual signification.[90] In The Deerslayer , what is residually invoked is the idealized world of classical republicanism, as yet untouched by its infectious encounters with modern liberalism and as yet pristine in its rational harmony: a world once political in focus but now shadowed forth only through the relations between the sexes.

If sexual purity is ritually invoked, as Mary Douglas argues, to repair the perceived damage to the body politic, the figure of the fallen woman would seem to have a wide symbolic currency, indispensable to any society at odds with itself.[91] Still, at the particular historical juncture we are studying—a juncture marked by the lamented loss of rationality in the political sphere—the figure of the fallen woman would seem to occupy a special place in her culture's semantic landscape. Historians of the early republic have written primarily on the experiential status of women.[92] To their work, we might want to add a rhetorical supplement, focusing on the ways the figure of woman, her integrity or lack of integrity, is made to answer to (and perhaps to answer for) the integrity or lack of integrity of the body politic.

Nor is this political figuration altogether fortuitous. Classical republicanism has never been gender neutral—although we might also note that traditionally it was gendered in a way almost directly contrary to its later avatar. Virtue, that cornerstone of the republican polity, had for centuries been figured as masculine, manifesting itself in military heroism and civic activism. The word virtue "derives from the Latin virtus ," Hanna Pitkin points out, "and thus from vir , which means 'man.' Virtù is thus manliness." Meanwhile, fortuna , which puts virtù at such hazards, is figured primarily (though not exclusively) as feminine. "Fortune is a woman," Machiavelli memorably observes, and, as Pitkin adds, "while he sometimes calls fortune a goddess, the means of coping with her that he suggests are not those usually applied to divinities."[93] The figure of woman has other mean-


ings as well. In The Spirit of the Laws (1748), Montesquieu associates her with "luxury," a disease fatal to the republic. He cautions "good legislators" against the "public incontinence" that "causes women to corrupt even before being corrupted."[94]

Judith, whose love of luxury is copiously documented, is conceived very much in the spirit of Montesquieu. Still, this bad habit alone does not seem to be the cause for her downfall. Her capital offense lies elsewhere. Virtue—Judith's much decried loss of it—is what puts her completely beyond the pale of Natty Bumppo, and what disqualifies her forever as a claimant of names. But simply to state that is also to note the enormous distance the word has traveled, not only from its classical Renaissance roots but also from its more immediate use in Revolutionary America. To the Founding Fathers of the republic, virtue was still masculine, still political; and if there was some doubt about its availability, there was no doubt at all about its gender.[95] As the foundational attribute of the republic, the word had an authority almost tautological, as we can see in the circular incantation coming even from a skeptic like James Madison: "I go on this great republican principle: that the people will have virtue and intelligence to select men of virtue and wisdom."[96] Against that great republican principle, the prurient narrowing of focus in The Deerslayer must seem like a cruel joke. From being a civic ideal, conducive to the public good, virtue has come to denote a sexual standard, conducive to the acceptability of a marriage. And from being embodied by the manly citizen, virtue is now perilously lodged within the feminine subject.

The feminization of virtue might turn out to be the most important semantic transformation attendant upon the rise of a liberal political culture. Ian Watt long ago alerted us to this "tremendous narrowing of the ethical scale, a redefinition of virtue in primarily sexual terms."[97] More recently, Ruth Bloch and Carroll Smith-Rosenberg have related this semantic transformation to structural changes newly effected in the liberal polity, with its emerging party system, its conception of politics as a sphere of expediency, and, paralleling that development, its emphasis on private morality and relegation of the ethical domain to female tutelage.[98] In short, the feminization of virtue registered in the broadest sense a cognitive revolution, a revolution in the way institutional domains were conceptualized, organized, and differentiated. It had everything to do with the liberal


philosophy of separate spheres, a philosophy which distinguished between the sexes even as it distinguished between the moral and the political, inscribing a realm of foundational certitude over and against a realm of partisan maneuverings.[99]

Proceeding further, we might say that nineteenth-century liberalism not only believed in separate spheres of life, it also attributed to each of those spheres a high degree of autonomy, which is to say, a high degree of reflexive resolution and internal equilibrium, imagining each as self-sufficient on its own terms, integrated by its own rationalizing principle. The Invisible Hand behind the self-regulating market was only the most dramatic example of such reflexive resolution. There were other examples as well. The moral domain, as it evolved under the aegis of modern liberalism, also came into its own through a declaration of independence—through a cognitive separation from the polity and from the path of the law—becoming, in the process, a fully autonomous domain, discretely conceptualized and reflexively integrated. And so here too, a self-adequating principle came to govern the structure of the moral agent, matching deed and consequence, character and desert, making the field internally commensurate and internally accountable.

Natty Bumppo, Cooper's prime exhibit in the way of the moral agent, offers a good illustration of its workings. As John P. McWilliams has persuasively argued, and as we see most vividly in The Pioneers (1823), Natty embodies the moral law as opposed to the civil law embodied by the lesser characters.[100] And the moral law, in The Deerslayer , is summed up by one word, "honesty," an epithet Natty virtually personifies. "I'll answer for his honesty , whatever I may do for his valor in battle" (63): this is Harry March's backhanded compliment, and, for the rest of the book, we are never allowed to lose sight of Natty's "honest face and honest heart" (74). "All proclaim your honesty," Judith tells him (128), "your honest countenance would be sufficient surety for the truth of a thousand hearts" (126). And she adds, "The girl that finally wins you, Deerslayer, will at least win an honest heart—one without treachery or guile" (130).

Honesty, understood as an antidote to "treachery or guile," harkens back to the eighteenth century, to what Gordon Wood has called its "paranoid style," a conspiratorial mode of thinking. Cooper's The Pathfinder (published in 1840, just one year before The Deerslayer ) was an extravagant exercise in just that genre.[101] However, as


Wood also argues, the paranoid style must be seen not as a collective delusion or mania but as a "mode of causal attribution," which, in supposing that "every social effect, every political event, had to have a purposive human agent as a cause," implicitly "presumes a world of autonomous, freely acting individuals who are capable of directly and deliberately bringing about events through their decisions and actions, and who thereby can be held morally responsible for what happens." The paranoid style turns out to be a Kantian style. Assuming as it did a fully purposive, fully rationalized universe—a universe that admitted of no mismatch, no loss between will and consequence—this paranoid style sustained not only an eighteenth-century style of political discourse but, increasingly, a nineteenth-century style of moral reasoning. And as Wood also points out, this mode of causal attribution has not died with the eighteenth century: "its assumptions still permeate our culture, although, as our system of criminal punishment shows, in increasingly archaic and contradictory ways."[102]

Natty is not about to become a recipient of such criminal punishment. Still, his moral centrality in The Deerslayer would seem to suggest not only the extent to which the novel is even more archaic, even more contradictory than criminal law, but also the extent to which this archaic contradiction is simultaneously the rallying point for a new line of development. For what Natty embodies, in his formidable integrity—in the fully commensurate, fully matching relation between his "honest face" and "honest heart"—is nothing other than the newly sanctified image of the moral domain, understood now as a domain rationalizable on its own terms, a domain of reflexive resolution and internal equilibrium. And so it is fitting that the litmus test for him should be the act of promise keeping, an act which, if executed, would bear witness to just such a rationalizable universe. Promise keeping is thus central to Cooper as the criterion for a morality reflexively integrated within the individual.[103] And Natty's conduct here is exemplary. Captured by the Hurons, he is allowed to leave on a "furlough." Judith begs him not to return, but Natty would not think of it. For him, a furlough is "a thong that binds tighter than any chain. . . . Ropes and chains allow of knives, and desait, and contrivances, but a furlough can be neither cut, slipped, nor sarcumvented" (445).

Natty is bound by his promise, not only in the sense that he is compelled to honor it but also in the sense that he is reflexively inte-


grated by it, becoming, in the process, a truly rational entity, recuperative in time as well as in space, its will always translating into its deed, the terminal effect always encompassed by the original intention. He is as good as his word. Here, then, is a version of the commensurate that would actually work. Problematic as a distributive category and endangered as a political category, commensurability remains coherent, it would seem, only as a moral category, reflexively unifying the trajectory of a single individual. On the strength of that commensurability, Natty is able to go through a succession of names—"Straight-tongue," "Pigeon," "Lap-Ear," "Deerslayer," "Hawkeye"—without failing always to be equal to himself. Also on the strength of that commensurability, the novel ends, having rejected various unequal matches, with that curious, seemingly tautological, but by no means unequal union: between a man named Deerslayer and a gun named Killdeer.

The moral domain, as it is reflexively integrated by the moral agent, thus turns out to be the rational ground not only for the nineteenth-century novel but also, more generally still, for a liberalism increasingly faced with the erosion of that rational ground in other spheres of life. Especially for Cooper, sorely aware that the political order has no foundation in nature, the recovery of a moral foundation must seem all the more gratifying. Natty's "moral law," offered not only in contradistinction to civil law but also in transcendence of it, might be seen, then, as a kind of necessary fantasy, an attempt to redress the decline of reason in politics by looking beyond it, locating beyond its passional sphere a rational ground at once more innate and more permanent. In short, the moral law, to be moral, must now be natural ; it must be anterior to and independent of politics. And it is the naturalness of this morality that the novel must demonstrate with particular insistence.

On that count, however, Natty himself would appear to be a rather inadequate specimen, for even though his promise keeping might look like an instance of natural morality, its naturalness nonetheless cannot be definitively proven. In fact, a hundred years before Cooper, in a well-known chapter in A Treatise of Human Nature (1739), Hume had argued just the opposite. "The rule of morality, which enjoins the performance of promises, is not natural ," Hume said, because promises are merely "symbols or signs instituted, by which we might give each other security of our conduct." As such, they are


strictly "human inventions, founded on the necessities and interests of society." Indeed, "a promise wou'd not be intelligible, before human conventions had establish'd it."[104] And since promise keeping is conventional, so too is morality itself. It is no more than an "artificial" institution, Hume argued, no more than a system of assumable signs: "It appears, therefore, that all virtuous actions derive their merit only from virtuous motives, and are consider'd merely as signs of those motives. . . . But 'tis usual . . . to fix our attention on the signs, and neglect, in some measure, the thing signify'd."[105]

A moral person, according to Hume, is simply a person who displays the signs of morality: signs anything but natural, anything but innate. Something of that unhappy thought, I think, haunts the moral landscape of The Deerslayer . And perhaps it is to overcome it that the novel would develop a twin focus, giving us not only a putatively moral character who keeps promises but also a certifiably immoral character who has grievously sinned. In other words, to be truly foundational, the judgmental weight of the novel would have to be borne not only by a man such as Natty, the naturalness of whose morality is a matter of surmise, but, even more crucially, by a woman such as Judith, the naturalness of whose "fallenness" is a matter of certainty, anatomically demonstrable and quite beyond dispute.

If the rise of modern liberalism marked the decline of political rationality, as I have tried to argue, the feminization of virtue would seem to be simultaneously a symptom and a remedy. A cognitive revolution such as this one testifies both to the emerging irrationality of the political sphere and to a spirited attempt to repair that damage, to locate a rational ground outside the vicissitudes of politics, in a natural morality commensurate with the natural order. The feminization of virtue, in this sense, might be seen as the naturalization of Reason itself, perhaps the ultimate dream of the Enlightenment. And as we have already seen in Kant's Philosophy of Law , Reason naturalized within the moral domain must make "justice" a natural dictate, a categorical imperative, its "Equalization of Like with Like" taking on the character of an axiom, its principle of commensurability doubling as a death sentence. To the extent that The Deerslayer is home to this naturalized justice, it too must be punitive at its core: punitive not out of wanton cruelty but out of rational necessity.

The fate of Judith amply attests to that punitive rationality. She, as we know, is someone inhospitable to the commensurate, being al-


ways above or beneath someone else. Such a problem, however, is not without its remedy. The remedy is suggested, in fact, by Hurry Harry in an oddly prescient remark to Thomas Hutter. Judith, he says, "hasn't her equal on the frontiers for good looks, whatever she may have for good behavior. . . . Give me Jude, if her conduct was only equal to her looks!" (73). Hurry begins by stating the problem—Judith, once again, has failed to be equal to anyone—but he quickly moves from the problematic to the optative, turning from the unequal distribution of beauty among persons to a more congenial topic, namely, the maintenance of equivalence between "looks" and "conduct" within a single person. As with Natty, it is the moral agent that is offered as the theater of the commensurate. And since that agent happens to be a fallen woman, the gender inflection neatly transposes as a disciplinary proposition what is problematically unstable as a distributive proposition. The persistence of retribution in the novel, the feminization of that phenomenon, thus represents something of a wish fulfillment on its part, its dream of a justice immanent within a natural order.

And yet if The Deerslayer is any indication (and the novel seems to me virtually generic in this regard), such a dream of justice must remain, first and last, a dream. Its frailty is underscored not least of all by the punitive excess of the novel—its tendency toward undue severity, redoubled execution—an excess which, in its refusal to limit its scope, must end up upsetting the very moral ground that underwrites it and gives it coherence. Something of that excess is seen in the fate of Hetty, who, caught "in the crowd of Huron women" (507) fleeing the British army, is fatally wounded by a stray bullet. "How this wound was received no one knew" (512). Judith, of course, assures her sister," 'Twas an accident, poor Hetty; a sad accident it has been" (514). But Cooper also adds, "it was probably one of those casualties that ever accompany scenes like that related in the previous chapter" (512). What was related in the previous chapter was the triumph of the king's army, a triumph accompanied by the usual "shrieks" and "groans" of the vanquished, although, oddly, what Cooper chooses to dwell on is one particular aural detail, "a sound unusual to the woods." This was the "measured tread" of the army, an army of "trained men," a tread "regular and heavy, as if the earth were struck with beetles" (507). It is the sinister repetition of this sound, this "heavy, measured, menacing tread," which troubles the


concluding pages of the novel, and gathers into a single detail the bugbear of republican thought, its fear of the "standing army." And it is against the complex inscriptions of that sound that we can see Hetty's death as complexly inscribed as well, a death afflicting her, to be sure, but also radiating outward to a web of referents.

Guiltless herself, Hetty must nonetheless pay the penalty of death. That exorbitant penalty is exacted from her, no doubt because, like Judith, she too is a signifying criminal, made to atone not only for a moral offense, the "sins of the family," but also in this case for a political offense, something like the sins of the nation, the sins of a republic gone liberal. For what is dramatized here, in the "accidental" death of Hetty, the senselessness of it and the randomness of it, is nothing other than the breakdown of Reason itself: once the hoped-for foundation of the polity and now the hoped-for foundation of nature, but, in the mindless killing of Hetty, proven unreliable on both counts. Perhaps that mindlessness matches the feeblemindedness of Hetty's own life; but, if so, this instance of commensurability must seem an obscene parody of the term. Unlike the death penalty in Kant, the guaranteed "Equalization of Punishment with Crime," the death penalty in Cooper brings with it no guarantee of a natural fit in the world. And unlike the path of the law, the broad mantle of novelistic justice is finally too broad for its own logic, too complexly inscribed and too richly particularized to pass for a model of full rationality. What is dispensed here, then, turns out to be a rather disconcerting kind of justice, intensely retributive, to be sure, but also hopelessly overwrought, hopelessly asymmetrical to its object, unnerving in its excess, and unedifying in its residue.

And so even Judith, the prime recipient of novelistic justice, is not completely dispatchable, not completely obliterated by the verdict which, barring her from Natty's affections, leaves her "with a heart nearly broken by the consciousness of undeserving" (531). Judith is undeserving of Natty, the voice of justice would like us to think. But given the lack of a syntactic predicate here—given the construction of "undeserving" as a detached substantive, rather than as an adjectival copula appended to a particular object—Judith might also be said to be the embodiment of "undesert" itself, embodying it as a morally vexing condition and embodying it, as always, in a glaring unfitness for the commensurate. If she is both too good and not good enough for Natty, she is also too good and not good enough for any fate that


the novel might conceivably devise for her. Her banishment to England—to take up with Warley, "though she did not bear his name" (534)—dispenses justice only within the formal closure of the novel. It cannot eliminate her completely, for, fifteen years later, revisiting the scene, Natty "found a ribbon of Judith's fluttering from a log," a ribbon which "recalled all her beauty and, we may add, all her failings." Natty takes it and "knot[s] it to the stock of Killdeer, which had been the gift of the girl herself" (533). Together, in their knottedness and in their incommensurability, gun and ribbon testify both to the workings of novelistic justice and to the persistence of its residues.


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