Promised in marriage, courting in Colonial NSW

Free men and women who courted were considered to be ‘promised in marriage’. Expectations were set as to how the forthcoming marriage would advantage both parties socially and economically. When a promise of marriage was broken—or breached—the offending party could be pursued through the civil courts for the value of ‘lost expectations’.

The first ‘breach of promise’

Sarah Cox & John Payne

The first ‘breach of promise’ case in NSW to come before a jury was brought by Sarah Cox against Captain John Payne in May 1825. He had received permission from Sarah’s parents—two former convicts—to first court the young woman in 1822 when she was aged 16 and he, 34 years of age.

A mariner, Payne was often away. He also liked a drink and had a habit of turning his affections towards other women. Eventually, he would reaffirm his love for Sarah who, after chastising him, would accept him back. During their period of promise, Payne unexpectedly married a wealthy widow. By then, Sarah was 19 years old, and she sought recompense through the courts for Payne’s actions.

Sarah pursued action against Payne for ‘trespass’ on a promise of marriage and sought £1,000 in damages. Payne dismissed Sarah’s complaint, arguing that he had not made a promise of marriage.

However, a letter Payne earlier wrote to Sarah suggested otherwise.

It is my sincere intention to make you a companion of my future life.

Payne’s defence countered that Sarah could not have believed a promise was in place, as another man, David Souter, had declared his affections towards her. Furthermore, Souter’s advances to Sarah had been made on the grounds that her ‘former attachment was completely broken off with a certain individual in Sydney’. The court found in Sarah’s favour and awarded her £100, one-tenth of what she had originally sought.

I intend enforcing you to keep your promise … I consider your conduct towards me, much beneath my notice. Sarah Cox, Letter to John Payne, no. 6, n.d.,
NSW State Archives, NRS 13471 [9/5198] Cox v Payne 1825

Sarah was represented in her action against Payne by William Charles Wentworth, a champion for the emancipists and later Member of the NSW Legislative Council. As they pursued Payne through the courts, Sarah and Wentworth conceived a child. The couple went on to have two children, then another eight after they married in 1829. It was thought that Sarah’s convict parentage, her cohabiting with Wentworth, and the birth of their first two children outside marriage later impeded her acceptance into ‘respectable’ society.