Thanks for following along with my writing project, The House, a historical novel-in-progress about colonial Australia’s Sarah Wentworth, a ‘currency lass’ born as a free person to ex-convict parents. Sarah brought the first breach of promise case in Australia, and faced a life of social exclusion, even though she was married to politician William Charles Wentworth, known as ‘Australia’s greatest son’.

In my last update on this project, I gave you a rundown of Cox v Payne, the first Breach of Promise case in NSW, and then wrote this:

Aged just 19, Sarah Cox was facing an uncertain future. She had lost the man she thought she loved, and the hope of marriage to him. She was humiliated in her close community, facing vilifying attacks on her reputation, which might have ruined her.

What was she to do? Sarah’s answer arrived on a ship in July 1824, in the form of William Charles Wentworth, back in Sydney after eight years away training to be a barrister. He was young, energetic, motivated, very ready to start all and any court proceedings… and he took a house pretty much next door to the Cox family on Macquarie Place.

Sarah’s world was about to change — in all the ways. Stay tuned.

Well. I seriously hope you didn’t hold your breath while you stayed tuned, because… it’s been a minute.

With some busy months of work and other projects, plus the disappointment of not getting some funding I applied for, and lots of life things going on, I haven’t actually progressed Sarah’s story for a while (apart from thinking about who she is as a person, almost daily, in the shower).

But I have had you in my thoughts, dear reader, as well as the need to continue the what-happened-next-to-Sarah-Cox conversation. So here we go.

How Cox v Payne went down

On 21 September 1824, five months after the pie-loving John Payne dumped his much younger fiance Sarah Cox to quickly marry a wealthy widow, 19-year old Sarah brought a breach of promise case against him in the New South Wales courts.

Sarah was suing for £1000. Actually, let me rewrite that in full. She was suing him for a thousand pounds! See how much more impressive it looks as words rather than numbers and symbols? For the time, it was an impressive number. If the court awarded it to her, she would have her life set up, with more money than her modest, from-a-trade-background, emancipist convict parents would ever have made in their lives.

It behooved John Payne to quickly organise his legal defence, not simply because of the money at stake, but also because the lawyer engaged by Sarah Cox was the young and brash, energetic and arrogant barrister William Charles Wentworth, who was fresh off the boat from his law education in England, and launching lawsuits left right and centre - including another, unrelated case against Payne.

Wentworth was what polite people might call a ‘character’. I described him in another post in this series as ‘tall and scruffy, loud and opinionated, frequently drunk, incredibly ambitious, constantly disappointed and argumentative.’ He was also probably pretty charming, especially to the ladies.

It’s likely that Sarah would have known who he was, simply because Sydney was a small community and Wentworth began living just up the street from the Cox family. Maybe they met on the street, or in a shop, or out for a walk enjoying the sparkle of the sunshine on Port Jackson’s blue waters. I don’t know. It doesn’t really matter.

A bigger question for me is whose idea was the lawsuit.

Did Sarah decide she’d take Payne to court, and then knock on Wentworth’s door one day and ask him to file papers? Or perhaps word of Payne’s perfidy spread to Wentworth’s ears and an idea sparked. If he was already acting against him - a second case might pile on the pressure and hand Wentworth the win. Indeed, he may have approached Sarah Cox and suggested the first no-win, no-pay arrangement.

In one way, where the court case originated doesn’t matter. In another way it really does. But we’ll get to that bit.

In November 1824, another set of papers are filed, stating that because Sarah is only 19 and ‘an infant, under the age of twenty one years’, she’s asking her father Francis Cox to bring the Breach of Promise action in her stead.

In one way, this doesn’t seem particularly interesting. In another way, it really does. But again, we’ll get to that bit.

In front of the judge

The in-court action happened in May 1825 and was reported on by both the Sydney Gazette and The Australian. Wentworth and defence lawyer Robert Wardell (both BFFs, both founders of The Australian) took turns to examine the witnesses and make their arguments. One of Wentworth’s key arguments was that in marrying someone else and not returning Sarah’s letters, and because of the stories circulating about her, John Payne had ruined Sarah’s reputation irreversibly.

When he summed up, Wentworth addressed the injury to Sarah’s reputation:

By your verdict, Gentlemen of the Jury, you will send her forth to the world free from taint. If such among you, as are fathers, consider what your feelings would have been, you will award that degree of compensation as will in some measure recompence (sic) her for the injury she has sustained.

Happily for Sarah, the Judge agreed and awarded her £100, with costs. She was the winner of the first breach of promise case in New South Wales, and while she didn’t go away with the full thousand in her pocket, £100 wasn’t a bad windfall for any young woman in colonial Sydney. Anyone looking on might have said that her life was about to change.

Your life is about to change

The fact was, at the same time that the court was debating Sarah’s reputation and how it affected her prospects of finding another suitor, Sarah was pregnant — to her barrister, William Charles Wentworth.

Their baby, the later-to-be very beautiful and accomplished Thomasine* Wentworth, was conceived somewhere in the second week of March 1825 according to my calculations. So at some point between March 1825 and July 1824, when Wentworth arrived in Sydney, he and Sarah Cox commenced a relationship. It might have begun in September 1824, when the first court papers were filed. Or possibly in November, when the papers were refiled with Sarah’s father’s name attached. Perhaps it was as late as February or even March that things got started between them.

Did Wentworth know about the baby while he was arguing in court? Sarah would have been 11 or 12 weeks pregnant, and it was common to keep things under wraps until the three month mark or more. She may not have told him then, but she certainly told him at some point, because after the court case she moved in with Wentworth to his Sydney digs. And, not long after that, in the middle of 1825 they went to live on his newly-leased 295-acre Petersham Estate, where she gave birth to Timmie.

I have questions

Really, a lot of questions. And also, some red flags.

My first red flag comes right out of my modern mindset of professional standards: gosh dang it, he was her lawyer. What are the rules? Is this even allowed?

A decade ago I had to find a new GP because mine had been deregistered after he had begun a relationship with a patient. Even though they were now happily married, he was still no longer allowed to practice medicine. Honestly, I imagined that there would be similar standards for lawyers in Australia, so you can understand that I have been shocked to find that no, there are no specific rules in any Australian jurisdiction that forbid sexual relationships between lawyers and their clients! Some recent cases have recognised that a sexual relationship with a client could undermine a lawyer’s independence and objectivity, but such behaviours on their own don’t constitute misconduct that would disbar anyone from legal practice. In fact, the Law Society President in 2000 admitted in a Sydney Morning Herald article that ‘a lot of my sexual partners have been clients of mine.’ Wentworth, as one of the first barristers in Australia, clearly set the tone from the very beginning.

My second red flag comes once again from a modern understanding - this time, around power imbalance in relationships. I mentioned it before in relation to Sarah’s relationship with John Payne. She’s 16 and an apprentice close to home, he’s in his mid-30s with years of experience in the world. It’s all, just, a bit… ick. Even though Sarah is three years older and wiser when she meets Wentworth, their relationship has similar levels of ick because of age and experience, and possibly more, because in this situation, he’s the person with the power and knowledge to advocate and argue for her. He’s the person on whom her reputation depends.

Here are my questions:

• Did Wentworth seek out Sarah’s case because he was already engaged in a case against John Payne, and wanted more information about him so he could win? Was he using her for information?

• Had Sarah already been sleeping with John Payne? There’s no whisper of a prior pregnancy, and he had been in her life since 1822**. She could only have been with Wentworth for 9 months at the very longest, and already she was expecting. If we assume that she was not sleeping with Payne and had little prior sexual experience, is that another power imbalance that Wentworth perhaps exploited?

• Was Sarah coerced? Or, would we consider with a modern mindset, that Wentworth’s behaviours towards her were coercive?

• Did Wentworth ever have any long-term intentions towards Sarah?

‘Free from taint’: a foreboding prophecy

I’ve spent a lot of time on Cox v Payne and how Sarah and Wentworth got together, but the events of 1822-1825 are but a small part of the much bigger story I’m writing in The House.

If we zoomed in and only saw the court case, Wentworth would look like Sarah’s knight in shining armour, riding in to rescue her from all the ways John Payne injured her — the jilting, the broken heart, the rumours, the scandalous reputation around town. Wentworth’s final words to the jury would be a triumphant summary of the success of the case!

“By your verdict, Gentlemen of the Jury, you will send her forth to the world free from taint. If such among you, as are fathers, consider what your feelings would have been, you will award that degree of compensation as will in some measure recompence (sic) her for the injury she has sustained.”

Zoom out, and the reality is that Wentworth’s words are darkly prophetic. His actions over the next few years injured Sarah’s reputation far more than John Payne’s ever did.

Being married was the normal way to escape scandal and ensure a good reputation. Both Sarah’s sisters got married fairly quickly after meeting their prospective husbands. But even though Sarah was pregnant with Wentworth’s baby, he didn’t marry her in 1825. He also didn’t marry her in 1827 when she had their second baby. And he had fathered a child with another woman, and had his name dragged into a scandal with a runaway female convict before he finally married her in 1829.

By then, of course, the damage to Sarah’s reputation had been done. It was too late. Wentworth should have taken his own advice of 1825 and considered as a father ‘what his feelings would have been’, but he didn’t, and the ‘taint’ of scandal and bad reputation never left Sarah Cox, later Wentworth. She, Timmie, and the other children would be affected by it for the rest of their lives.

*Thomasine or Timmie, as she was known, was born six months after the court case. She was named after Sir Thomas Brisbane who had become NSW Governor in 1821.

** During the case, Wentworth mocked the way Payne began courting Sarah, saying “In 1822 the defendant began to form a serious attachment; his mode of courtship was certainly a novel one, for, in place of making use of the weapon with which men usually make love, he one morning handed the plaintiff a slip of paper, asking her whether she had any objection to change her name to Sarah Payne.” I think we can safely assume that Wentworth was well accustomed to using his own ‘weapon’ with which men usually make love.

My telling of Sarah Wentworth’s story has the working title of ‘The House’. If you’d like to follow along with my progress, I’ll be updating my subscribers regularly, sharing story snippets and research discoveries, and talking through the process of taking on such a project. Sign up below to follow along. And drop me your comments and questions. I’d love to know what you think of the story and the project.

Catch up with the project from the beginning. Here’s the very first post introducing ‘The House’.