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NAN GOODMAN A Clear Showing: The Problem of Fault in James Fenimore Cooper's The Pioneers . . . even a dog distinguishes between being stumbled over and being kicked. Oliver Wendell Holmes, Jr. , The Common Law In the opening scene of James Fenimore Cooper's The Pioneers (1823), Judge Temple is returning with his daughter to the wilderness settlement ofTempleton when he hears the sound of dogs chasing game through the woods. Impulsively and with no other thought than to give his daughter "a saddle for [her] Christmas dinner, " he stops his sleigh, checks the priming of his gun, aims and shoots at a buck that darts suddenly into view.1 Several shots later, the buck falls dead and two "unseen marksmen," one ofwho turns out to be the legendary Natty Bumppo, come out from behind some trees. Though Cooper acknowledges only that the shot was accomplished "with a rapidity that confused the female," its rapidity appears to have confused the males as well. In the midst of an argument over who actually killed the deer, and by tracing the trajectory of all the bullets, Natty demonstrates that all but one of the judge's bullets hit a tree while the last lodged in the shoulder of the other marksman, Natty's mysterious companion. Aiming at a buck, the judge shot a man, by accident. This accident remains central to the development of the novel's form, language, and ideas; an apparently motiveless event, it motivates the entire plot. Arizona Quarterly Volume 49 Number 2, Summer 1993 Copyright © 1993 by Arizona Board of Regents ISSN 0004-161 Nan Goodman The novel's story is a familiar one to readers of Cooper: it narrates the adventures of the intrepid Natty Bumppo and describes his hesitant and ambiguous interactions with the white settlers whom he inevitably precedes and who, in each of the Leatherstocking Tales, threaten his way of life. Through the story of Natty's encounter with Temple and with the other inhabitants ofTempleton, the town named for him, the novel describes the process of socialization by which America turned from a wilderness society into an industrial one—a process that, in Cooper's words, "conduced to effect that magical change in the power and condition of the state" (16). Cooper's novels take place during the period of proto-industrialization or "comparative wilderness," that is, in the last years of the eighteenth century (19). But if the action ofThe Pioneers begins in 1 793, Cooper's account of it is informed by the ideology and evolving legal technology of the 1820s, the period of his own professional maturity. Central to that technology, I argue, is the law of accidents, or tort law, which was undergoing a major transformation in the first quarter of the nineteenth century. My claim in this essay is twofold: I argue first that the centrality of the initial accident and subsequent accident scenes in the novel parallels the centrality of accidents in what was fast becoming an American culture of accidents and risk. My further claim is that the transformation in the law of accidents helped to negotiate the American transition from wilderness to industry and contributed to the formation of an American society of risk in which risk went well beyond the economic. I propose to read two different texts, the novel and the law, and to show the inteconnections between them. Specifically , I read the novel as a paradigm for the competition between two different versions of accident law—the old law of strict liability and the new law of negligence—and in doing so 1 hope to show how and why the new law emerged triumphant. Though I deal with two texts—the literary and legal—I am not claiming a necessary coincidence between them. Nor am I suggesting a oneto -one correlation between certain fictional characters and certain developments in the law. On the contrary, I argue that if Natty is the representative of a soon-to-be superseded way of life, he is every bit as much the representative of the new Jacksonian social order. Similarly, I see Temple as an exemplar ofboth new and old worlds. In transmitting The Problem of Fault...


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