trial which was almost
certain to end in an adverse verdict. Negotiations between the parties
in the autumn of 1841 resulted in a novel agreement. Cooper did not care
for damages. It was not money he sought; it was to vindicate the truth
of his history and his character as an historian. When, therefore, his
adversary suggested that an ordinary jury of twelve men could not well
pass upon a question involving the value of conflicting evidence, and
minute technical detail, he seized upon the occasion to arrange that it
should be tried before a body of referees, consisting of three
distinguished lawyers. The proposal was accepted. Never was the eternal
question between author and reviewer settled in a more singular and a
more thorough way. For the referees were to decide, not merely upon
legal points, but upon moral ones. They were to decide whether the
author had written a truthful account of the battle of Lake Erie, and
whether he had written it in a spirit of truth. On the other hand, they
were to decide whether the reviewer had written matter libelous enough
to justify a verdict from a jury, and whether in the treatment of the
subject for which he criticised the history he had been just and
impartial. If the decision were in favor of the author the defendant was
not to pay more than two hundred and fifty dollars besides the costs. In
any case the beaten party was to publish the full text of the decision,
at his own expense, in the cities of New York, Albany, and Washington.
The referees agreed upon were Samuel Steevens, named by Cooper; Daniel
Lord, Jr., named by Stone; and Samuel A. Foot, chosen by mutual consent.
The attendance of many witnesses was rendered unnecessary by the (p. 216)
stipulation that a vast mass of documentary testimony in possession
of Cooper should be taken in evidence.

The referees met in the United States court room in New York city, on
the afternoon of Monday, May 16, 1842. A large crowd was in attendance.
Public interest had been aroused, not only by the question involved and
the novel character of the suit, but by the fact that the historian was
to assume the principal conduct of his own side. The trial lasted for
five days. After the opening speeches had been made, the taking of oral
testimony began. Among the witnesses for the defense were Sands,
Mackenzie, and Paulding, all officers of the navy. They were examined in
reference to Cooper's account of the battle of Lake Erie and the
diagr