“Cup and Saucer” Divorce: Cooper on Marriage

Barbara Alice Mann (University of Toledo)

Presented at the Cooper Panel on “James Fenimore Cooper and the Winds of Change” at the 2018 Conference of the American Literature Association in San Francisco, California.

Copyright © 2019, James Fenimore Cooper Society.

Originally published in the James Fenimore Cooper Society Journal 30.2 (Summer 2019), pp. 28-37.

[May be reproduced for instructional use by individuals or institutions; commercial use prohibited.]

Things got ugly for James Fenimore Cooper in 1838 with his novel Home as Found, in which the one-time literary darling had had the cheek to ridicule his fellow Americans on their yahoo pretensions to grandeur. Political spleen increased the critical furor, so that by 1850, Cooper had metamorphosed in the popular telling into a no-talent sourpuss, one who had long since committed “literary suicide.” 1 Worse, willful misreadings of his female characters ensured, and still ensure, that most critics miss his point. Almost automatically today, many literary scholars consign Cooper to the bellyacher wing of misogyny, but this owes to schizophrenic nineteenth- and twentieth-century assessments of his women, first in 1826, as shockingly “unladylike;” next in 1901, as too “straitlaced and precise” to be interesting; and finally in 1993, as a metaphor of “property rights.” 2 On the contrary, Cooper’s women are surprising, consciously challenging the status quo on a regular basis and usually winning. 3

Alas, mold-breaking women were not the way to the Victorian heart. Consequently, Cooper’s last novel, The Ways of the Hour (1850), took it heavily on the chin, with the kamikaze critic of the prestigious North American Review alleging that all Cooper could do was “croak and growl” his way through characters that were all, alike, unleavened “by a single ray of wit or fancy.” As it turned out, Cooper’s sole, unhinged purpose in Ways was to “write a dissertation” filled with “egregious misstatements and exaggerations,” deriding the American legal system. 4 To be sure, Ways contains a frontal assault on legal irregularities, with which Cooper was painfully familiar, given his own, many adventures in law, but it is somewhat doubtful just which of the gentlemen was the guiltier of hrumphulness, Cooper or his reviewer. In fact, Cooper’s legal exposé was a plot device to get his heroine convicted and not the point of the novel.

Consequently, in alleging that the whole work was a thinly disguised attack on “trial by jury in a democracy,” the North American Review critic managed to miss the complex interplay of the lone-ranger anti-heroine, Mary Monson — on trial for the seriously vulgar crimes of theft, arson, and murder most foul — against her blindly overbearing lawyer, Thomas Dunscomb. The reviewer dismissed Monson as “a mad woman” (period code for a female social rebel), even as he waived off Dunscomb as “an eccentric old bachelor” (period code for gay). 5 In a sideways manner, then, the critic recognized, but deliberately looked away from, the deep theme of Ways: marriage in the nineteenth century from the perspective of the two protagonists. Cooper was quizzing the institution of marriage, at least as it stood in 1850, and, interestingly, only one instance of happy marriage existed out of the four major instances of marriage before the reader, those of: (1) the “marriage de raison“ of Mary Monson; 6 (2) the confirmed bachelorhood of Dunscomb; (3) the happy third marriage of Dunscomb’s best friend, Dr. McBrain (yes, really); and finally, (4) the rancorous marriage of the supposedly murdered couple, the Goodwins.

This focus was why Ways was so bad for Victorian digestion: its soto voce theme was marriage most foul. First, the trial exploded the salt-of-the-earth myth of the happily married Goodwins, who were neither good nor winners but whose marriage made a mockery of Victorian norms, as Dolly Goodwin turned out to be a miserly, demanding control freak and her husband a head-banging drunkard who spent the novel in delirium tremens. Second, Dr. McBrain was happy largely because he was marvelously oblivious, especially of his step-daughter’s caprices, such as aiding and abetting Monson’s jailbreak. 7 As though these issues were not resolving immorally enough for the gatekeepers of Victoriana, an elaborate Victorian ritual of hide-and-sex was also at hand with both Monson and Dunscomb. “Mary Monson” was an alias concealing Monson’s status as a runaway wife, yet far from censuring her flight from marriage, Cooper rewarded her for it with a New York divorce.

Cooper shone a bright light on the prohibition against runaway wives, including the ability of husbands, doctors, and the law to label rebellious women legally “mad” (as The North American Review critic casually did Monson). Runaway wives were guilty of civil, if not criminal, violations, for marriage was a civil “contract between two unequal partners,” under which the woman owed the man service, legally identical to an indenture. This explains the plethora of advertisements in eighteenth- and nineteenth-century newspapers seeking information on, or return of, runaway wives, including the husbands’ refusals to pay any of the wives’ debts under breach of contract. 8 Moreover, in the nineteenth century, a man angered by a wife’s “insanity,” as idiosyncratically defined by himself, could have her locked up in a madhouse, as de facto punishment in the interests of Victorian social control. 9 Consider the 1860 experience of Elizabeth Parsons Ware Packard, an Illinois reformer imprisoned by her husband in her home, with the windows nailed shut, prior to having her legally consigned for life to the Northampton Insane Asylum for no reason other than that she stood in the way of his schemes for personal advancement. 10 Monson was in a very perilous position, even before the criminal trial.

If Monson was a runaway wife, then Dunscomb was just as much a runaway husband. Dunscomb was, as he averred, “not a marrying man, in any sense of the word.” 11 He assured his niece, “Let a man live a bachelor, and ten to one, he gets some nickname or other.” 12 “Concealed in a wood” outside of Manhattan was Dunscomb’s country home, the Rattletrap, “a famous place for a bachelor to hide his oddities in,” the named “oddities” hilariously enough including unused fishing rods and old ploughs. 13 (I regularly wonder how consciously Cooper provided such details.) This much bachelorhood required more cover than a country hide-away to escape public notice. Today, many may have forgotten — or perhaps might never have known — that it was once de rigueur for a closeted gay to claim that a lost love in youth had occasioned his life-long celibacy. He might even procreate — once, anyhow — just to “prove” his manhood. 14 In this case, Monson turned out to be Dunscomb’s granddaughter, the child of his illegitimate daughter, Mary, by Monson’s namesake grandmother, Mildred Millington, the mere memory of whom still “unmanned” Dunscomb, “a little.” 15 Mildred’s Millington husband even tried to force Dunscomb to take custody of the child as her “trustee and guardian.” 16 Dunscomb might have fobbed her off on Mildred’s husband (chosen for his wealth), but Monson later forcefully confronted Dunscomb with his abandonment of her mother. 17 Dunscomb has interesting layers that bear further exploration.

Although the North American Review denied Cooper’s characters any dynamism, both Dunscomb and Monson were quite dynamic. The disclosures about Monson as a runaway and Dunscomb as a confirmed bachelor capped the curmudgeonly Dunscomb’s mental adjustment to just how wrong he had been about all his assumptions. First, Monson was not the vile criminal he had taken her for (“‘You surely do not think her guilty,’” his nephew cried during a crucial phase of the trial, to which Dunscomb, “looking intently” at the youth, replied, “‘I do’”). 18 Second, he was not the “the great lawyer from New York” that all, including himself, had taken him for. 19 Third, he was quite wrong in his opposition to the new “cup and saucer” divorce, on the grounds that women could not handle money or real-world affairs on their own. 21 (The New York Married Women’s Property Acts of 1848–1850 ensured that, in divorce, the ex-wife retained her financial rights and whatever property she had brought into the marriage. 21)

Monson’s divorce was perhaps the most significant socio-ethical turnaround for Dunscomb. Cooper had made a point throughout the novel of revealing Dunscomb’s hidebound Victorian sexism and relish of male privilege, particularly in marriage, a condition to which he found people unaccountably prone. 22 In Chapter Two, Dunscomb freely vented his disdain for the “cup and saucer” development to his best friend, the twice-widowed Dr. McBrain who was just then on the cusp of his third marriage: “‘Hang me,’” declared Dunscomb, “‘if I would ever marry, when the contract is so one-sided.’” “‘You never did,’” retorted McBrain, “‘when the contract was t’other-sided.’” McBrain even expressed his support of the new law as an “experiment worth a trial, if it be only to see the use she will make of her money.” 23 Just because Dunscomb regarded McBrain with condescension does not mean that the reader should.

In his haste to condemn Dunscomb, Monson, McBrain, and the lot of them as stiff, “sour caricatures,” it never occurred to The North American Review critic to question why Cooper would set up such a dispute in the exposition, much less highlight it as covalent with Dunscomb’s general annoyance at the assumption that the jury trials actually worked to the ends of justice. Neither did he wonder why Cooper might conclude the novel on the issue of a divorce that worked to secure the happiness and finances of Dunscomb’s sometime client and secret granddaughter. 24 Yes, Cooper used the novel to raise public awareness of such problems as the court’s failure to secure custody of the chain of evidence, to stop jury tampering, or to take seriously Dr. McBrain’s expert (and exculpating) testimony regarding the sex of one skeletalized victim. However, Cooper had a larger purpose, that of pushing his fossilized old lawyer to realize that Dr. McBrain had been correct in nearly all of his opinions. By contrast, Dunscomb had been incorrect in all too many of his opinions, especially those concerning the male-female relationship in marriage and the rights of runaway wives, not to mention his youthful refusal to accept custody of his illegitimate daughter, when it was pressed on him in her infancy, or his vocal repudiation of “cup and saucer” divorce laws. 25

As Monson’s innocence is dramatically revealed in court, the novel’s reversal comes as quite a turn-around for Dunscomb, as well as for any alert reader. Cooper’s point was not merely to skewer legal blind spots in, for instance, satirizing Monson’s all-male, uneducated, downscale jury as a jury of her “peers, in the eyes of the law.” 26 No doubt drawing upon his own experiences with juries, Cooper clearly questioned the efficacy of jurors filled with proud ignorance in making judgments on “arcane” matters. Although perhaps “to be trusted,” should they listen to the judge, he saw no likelihood of that in a media circus, such as that surrounding the Monson case. There, the fate of an independent, middle-class woman was placed into the hands of lower-class men “who were terrible and dangerous, when they listened, as is too apt to be the case, to the suggestions of their own impulses, ignorance and prejudice.” 27 Cooper was making a point about what happens to fairness in the face of outraged social convention, especially to women, and under the cover of democracy.

Especially given his own bruising fight regarding Oliver Hazard Perry and Jesse Elliott at the 1813 Battle of Lake Erie, erupting upon the publication of his History of the Navy (1839), Cooper knew that, once publicly sullied, however unfairly, a reputation did not recover. 28 Cooper might have won this court case, acting pro se in a spectacular show of self-taught legal prowess, but he “could never remove dislike or disarm criticism” for having questioned the populist veneration of Perry. 29 In revisiting his trauma in Ways by allowing a woman, Mary Monson, to fire Dunscomb and then display the same pro se courtroom brilliance as himself, Cooper was hazing Victorian ideology. Even more interestingly, just as he had begun his career by writing as “Jane Morgan” and, more inconspicuously, as “a lady,” he ended it by placing a demonstration of his most dearly held legal precepts into the hands of a fictional woman. 31 This meant something. It is worth recalling that Cooper had three intelligent daughters, not to mention a feisty wife of forty years, to all of whom he was deeply attached.

By casually declaring Mary Monson “mad,” then, the 1850 North American Review critic was implying that the asylum fate should have overtaken Monson, making Dunscomb’s familial support of her independence, even after the divorce he opposed, all the more remarkable, for he, too, had judged her to be mad. 31 For all Dunscomb’s lingering doubts, Mary, or Mildred Millington as she renamed herself in the denouement, “manifested wonderful sagacity in taking care of her property,” a reference back to McBrain’s opening support of the “cup and saucer” law as a worthy experiment. 32 Not only McBrain, but all were now able to see the vindicatingly perspicacious use that Mildred made of her money. It was this “clear-minded and intelligent” management that Dunscomb conceded “rendered it so difficult to take any steps to deprive her of its control,” despite her “cunning,” which he saw as evidence of her insanity. 33 (Cooper did describe Monson as suffering from PTSD, a real condition for which no diagnosis or name then existed beyond “madness.”) Instead, at the end, Monson, or Mildred as she then called herself, obtained her New York divorce and kept her property. If hers remained a “quasi divorce,” then it was because she never returned to France, where she had been married, to push it through unfriendly French courts, as well, probably explaining the generous financial settlement allotted her hated husband, an impoverished French nobleman. 34 Money in hand, he made no trouble, so, in the wrap, Dunscomb and Mildred find closure, Dunscomb in guilt for his long-ago abandonment of a child (disguised as tears over a lost love), and Mildred in realizing gradually that, having won the fight of her life, she could now take off her boxing gloves. 35

The superficial theme of Ways, of which the 1850 reviewer so bitterly complained, does rage at judicial rushes to judgment, an irresponsible press ginning up stories for profit, and the dangers of cynical demagoguery playing on credulous populism, but Cooper’s chop-busting themes regarding marriage were the point of Ways. Just because the reviewer missed that the action, all of it, quizzed sexism, genderism, and unequal rights in marriage, as well as whether democracy even existed in America, does not mean that everyone else should miss it, too. If one theme is the right of a runaway wife to escape a failed marriage with her property and selfhood intact, then an equal theme is the right of a man not to marry, without having to defend his choice to everyone in sight, including stable-hands and town gossips.

These were desk-pounding, red-faced, shouting propositions in the heyday of Victoriana. Today, just pointing to Cooper’s closing, authorial defense of marriage as god-given — an oxymoronic proposition given Dunscomb! — overlooks that he was trying to counter what he knew would be very ruffled critical feathers, on the one hand, while worse, supposing Cooper’s complete access to twenty-first-century issue-framing, on the other hand. However virtuous a retroactive self-righteousness about Cooper’s antique framing may feel today, or how easily picked it might be as low-hanging fruit, we should not neglect the fact that every aspect of Cooper’s final novel sat on the crest of developing social thought.

Works Cited

  • Burges, Tristram. The Battle of Lake Erie, with Notices of Commodore Elliot[t]’s Conduct in That Engagement. Philadelphia: Marshall, 1839.
  • “Art. V. The Ways of the Hour; a Tale“ [Review]. The North American Review 71.148 (July 1850): 121-135.
  • “Article III. Mackenzie’s Life of Perry” [Review]. North American Review 50 (July 1841): 79-103.
  • “Article VI. Cooper’s Naval History” [Review]. North American Review 49 (October 1839): 432-67.
  • Cooper, James Fenimore. History of the Navy of the United States. 3 rd ed. 2 vols. Cooperstown, NY: H. & E. Phinney, 1846.
  • ------. The Ways of the Hour, A Tale. 1850. New York: W.A. Townsend and Company, 1861.
  • Duer, William Alexander. “Review of the Naval History.” New- York Commercial Advertiser 8, 11, 14, and 19 June 1839.
  • Gardiner, W[illiam] H[oward]. “Article IX.” North American Review 23 (July 1826): 250-82.
  • Gilbert, Frank B. The Law of Domestic Relations of the State of New York with Forms Including Marriage, Divorce, Separation, Rights and Liabilities of Married Women, Actions for Dower, Guardian and Ward, Adoption of Children, Apprentices and Servants, Abandonment of Wives and Children, and Support of Poor Persons by Relatives. ... 2 nd ed. Albany: Matthew Bender, 1902.
  • Harper, Judith E. “New York Married Women’s Property Acts.” In Women’s Rights in the United States: A Comprehensive Encyclopedia of Issues, Events, and People. Ed. Tiffany K. Wayne and Lois Banner. Santa Barbara, CA: ABC-CLIO, LLC, 2015. 138–39.
  • Howells, William Dean. Heroines of Fiction, Parts One and Two. 2 vols. New York: Harper & Brothers, 1901.
  • Lawson-Peebles, Robert. “Property, Marriage, Women: James Fenimore Cooper’s First Fictions.” In James Fenimore Cooper: New Historical and Literary Contexts. Ed. W. M. Verhoeven. Amsterdam: Rodopi, 1993. 47-70.
  • Howells, William Dean. Heroines of Fiction, Parts One and Two. 2 vols. New York: Harper & Brothers, 1901.
  • Lerner, Gerda, ed. The Female Experience: An American Documentary. 1976. New York: Oxford University Press, 1992.
  • Mackenzie, Alexander Slidell. The Life of Commodore Oliver Hazard Perry. 2 vols. New York: Harper & Brothers, 1841.
  • Mann, Barbara Alice. The Cooper Connection: The Influence of Jane Austen on James Fenimore Cooper. New York: AMS Press, 2014.
  • Packard, Elizabeth Parsons Ware. Modern Persecution, or Married Woman’s Liabilities, as Demonstrated by the Action by the Illinois Legislature . 2 vols. Hartford: Case, Lockwood, and Brainard, 1874.
  • St-Armand, Nérée, and Eugène LeBlanc. “Women in 19 th Century Asylums: Three Exemplary Women; A New Brunswick Hero.” In Mad Matters: A Critical Reading in Canadian Mad Studies. Ed. Brenda A. Lafrançois, Robert Menzies, and Geoffrey Reaume. Toronto: Canadian Scholars’ Press, 2013. 38-48.


1 “Art. V. The Ways of the Hour; a Tale“ [Review]. The North American Review 71.148 (July 1850): for “literary suicide,” 121; personal denigrations, 121, 122-25.

2 For unladylike, see Gardiner, 164; for too conventional, see Howells, 1.111; for “straitlaced and precise,” see Hunt, 158; as property rights, see Lawson-Peebles, 47-70, particularly 52.

3 I go into this topic at length in Mann, The Cooper Connection, especially 107-112, 151-61.

4 The North American Review 71.148 (July 1850): 123-25, 128-29.

5 The North American Review 71.148 (July 1850): for trial, 129; for Monson, 133; for Dunscomb, 130.

6 Cooper, Ways, 317.

7 The jailbreak comes in Chapter 16. See Cooper, Ways, 266-78.

8 Lerner: quotations, 74; section sampling advertisements, 75-76.

9 St-Armand and LeBlanc, 38–48.

10 Packard, esp. vol. 2, 17; and Chapters 1, 2, and 3.

11 Cooper, Ways, 231.

12 Cooper, Ways, 177.

13 Cooper, Ways, 172.

14 Cooper, Ways, 143.

15 Cooper, Ways, 351. I make the case at length that Dunscomb was Monson’s grandfather, in Mann, The Cooper Connection, 151-54.

16 Cooper, Ways, 144.

17 Cooper, Ways, 310–11.

18 Cooper, Ways, 353.

19 Cooper, Ways, 385.

20 Cooper, Ways, 27-28, 479, 495.

21 The provisions of the New York Married Women’s Property Acts loosened divorce in 1848-1849, as upheld by the New York Supreme Court in 1850. For a discussion of 1848-1849 laws, see Harper, 138; for legal decision of 1850, see Gilbert, 125 et seq.

22 See, for instance, the extended discussion of Dunscomb’s philosophy of proper female comportment concerning money and staying put in a marriage, with the husband as firm head, in Cooper, Ways, 202-06.

23 Cooper, Ways, 27.

24 The North American Review 71.148 (July 1850): 124.

25 As the “once betrothed of her mother,” Mildred Millington, the deceased husband in his will wanted Dunscomb to “be the trustee and the guardian of the daughter,” in Cooper, Ways, 144.

26 Cooper, Ways, 134, 155, 365.

27 Cooper, Ways, 364-65.

28 Cooper, The Battle of Lake Erie; Mackenzie, The Life of Commodore Oliver Hazard Perry; Tristram Burges, The Battle of Lake Erie; William Alexander Duer, “Review of the Naval History”; “Article VI. Cooper’s Naval History” [Review], 432-67; “Article III. Mackenzie’s Life of Perry” [Review], 79-103.

29 Cooper (properly) gave Elliot equal credit with Perry for winning the Battle of Lake Erie in 1813 in Vol. 2, Chapter XXI, of History of the Navy of the United States, 2:186-99. See retrospective, including Cooper’s courtroom sensation, in “James Fenimore Cooper,” The Quarterly Review of the Methodist Episcopal Church, South, 646-47.

30 “Jane Morgan” was the pseudonym under which he published Tales for Fifteen (1823) and Precaution (1820), “by a lady.” For a full discussion, see Mann, The Cooper Connection, 21, 24-25.

31 Cooper, Ways, 318, 481, 503, 506.

32 Cooper, Ways, 481.

33 Cooper, Ways, 491, 493.

34 Cooper, Ways, 496.

35 Cooper, Ways: Dunscomb, 503; Mildred, 510-11.