WA History

Breach of Promise

Thomas Mellersh arrived in the Swan River Colony on 19 August 1834 aboard the ‘James Pattison‘. He was the son of a banker and land-steward of Godalming in Surrey and quickly set himself up as a settler. Leaving the colony in 1838, he returned two years later and upon his return he made the acquaintance of 17 year old Jane Heal.

The couple were considered to be of the same social standing. Jane was the daughter of a Lieutenant in Her Majesty’s Navy however her father had died a few years after the family’s arrival in 1830. At only seven years of age she found herself fatherless and “in poor circumstances“. Her widowed mother and siblings fell further down the societal ladder however throughout the years Jane had “nevertheless retained an unsullied reputation.

37 year old Thomas began paying his attentions to Jane when they met sometime between 1840 and 1841. Regardless of his maturity in years he was not initially serious about properly courting her. He first gained her affection and then made her a “shameful proposal“. She refused him and subsequently cut off all communication.

The Lovers Walk. Courtesy of the National Library of Congress.

With the help of friends, apologies were made, bridges were mended and courtship resumed. He was permitted to again visit her as an “accepted lover“. They wrote letters to each other, went riding together and behaved in such a way as to imply that they were “engaged to be married.

Thomas’s letters, written at the start of November 1841, survive as evidence of their relationship. Jane, at that point in time, was living at Matthews Moulton’s property at Canning River while Thomas was living at Guildford. He was missing her and was looking for a house in order to begin their life together. After much searching he expressed interest in renting Alfred Waylen’s home in Guildford and on 4 November 1841, he wrote to her with the news.

…I have succeeded in obtaining a place I think you will be pleased with; the view is so picturesque and beautiful, and the garden now is so charming, that it only wants your presence to render it complete.

Inquirer (Perth, WA : 1840 – 1855); 20 April 1842; Page 3; In the Civil Court

Jane responded and expressed her approval of the home Thomas had found. He replied six days later and while he declared that “…my own dear Jane will ever possess my heart sole and undivided” he also made mention of a “strange and romantic adventure” in which he sought the identity of another woman who was said to be enamoured with him.

Wishing to give her a present, he went shopping in Perth and bought her a dress of the latest French manufacture. He also tried to buy her a scarf but found that Mrs Rogers was not “keeping things for ladies.” He ended the letter with demonstrations of his love and a blob of ink representing a kiss.

However, it is hopeless to call for you, but your dear image is indelibly impressed upon my mind and recollection. Come down as soon as possible, and how eagerly and tenderly will I throw my longing arms around your neck, and bestow, as an offering of my love, innumerable and sincere kisses.

Inquirer (Perth, WA : 1840 – 1855); 20 April 1842; Page 3; In the Civil Court

The next letter was dated 18 November 1841. In it Thomas questioned why Jane was doubtful of his feelings for her and then intimated that he had been thinking of accusing her of the same thing. He admitted that he had been unkind in the past and hoped that “days and weeks of love, kindness, and repentance ought to wipe off and obliterate that.” He reassured her that he had changed from his past ways and had made arrangements in order to stay in the colony with her.

Doubt as to one another’s feelings was felt by both parties and it appears it was inflamed by the words of others. Unlikely to help the situation, Thomas stated in a letter to Jane that many people in Perth had asked him why he was fond of her. Sometimes he laughed in response to the questions while other times he denied his feelings. In spite of her doubts, Jane sent Thomas a lock of her hair which he declared would “always be valuable to me“.

A letter followed on 25 November in which Thomas mentioned that he was waiting on a letter from England. He asked Jane to recollect the promise he had made to her. He wished they were together and referred to her as “the companion of my walks and the sharer in all my joys and troubles.

When you possess all my heart and soul, it is needless again to assure you that my time shall be devoted to your comfort and happiness.

Inquirer (Perth, WA : 1840 – 1855); 20 April 1842; Page 3; In the Civil Court

Indicating that there was an engagement between the pair, Jane requested that Thomas write to his father and he agreed. He tried to convince her that there would be no objection to the match however it seems deep down he knew the truth.

For some time there was silence from Thomas and Jane had no way of knowing why. An explanation dated 25 February 1842 finally arrived where he addressed her as “My dear Friend“. He had not received a letter from his father but was of the opinion that he would withhold his consent and refuse the union. In light of those circumstances, and after great consideration, he broke off the engagement. Believing his life would be an unhappy one and grieving a decision he felt he had to make, he ended the letter by admitting that he only loved her.

I have formed no other connexion – my heart is even now lost, but I must forget the person who holds it. Trusting you will be happy and blessed with another’s love dearer than Your unfortunate friend and well-wisher, T. Mellersh.

Inquirer (Perth, WA : 1840 – 1855); 20 April 1842; Page 3; In the Civil Court

Jane did not respond. She initially had no plans to take him to court for breach of promise but then word reached her that Thomas was “endeavouring to blast her character“. Acting to protect her reputation, she enacted legal proceedings and claimed damages of £2,000.

The breach of promise case was the first in Western Australia and “excited considerable curiosity.” The Civil Court was crowded with people eager to hear the details and revel in the gossip of the letters which they thought “would afford the richest amusement“.

By presenting the letters in court, Jane’s counsel showed the jury that there was an agreement in place and that Thomas was not obligated to request permission from his father. They also argued that the letters and Thomas’s conduct proved that he was acting out of vanity and had no sincere affection for her.

At the very time the letters were written defendant was laying wages with his friends that he was not in earnest, but making a fool of the girl.

Inquirer (Perth, WA : 1840 – 1855); 20 April 1842; Page 3; In the Civil Court

Oral evidence for Jane’s case confirmed that her conduct was not “indelicate” and nor was she “addicted to drinking” as Thomas claimed. Other conversations were recalled which made Thomas look duplicitous in nature. On the one hand he was looking for properties for a married couple while on the other hand he was taking bets that he would not be married within five months from December 1841.

Thomas’s counsel put forward evidence to show that Jane’s reputation was not as good as it was made out to be and that she was “unworthy of the affections of a man of honour.” They essentially described her as a charlatan; acting one way in the presence of Thomas while another way in the presence of others.

It was also clear that Thomas chose to end the relationship because he was influenced by his friends who were said to have warned him of the “real character of the girl“. Jane supposedly liked to have a drink, was at times rude to her mother, had a temper and was once heard swearing when she cried out with respect to a drifting boat, “Damn it, don’t let the boat go.

Mr. F Whitfield was called who deposed that up to the time of his leaving Guildford, now two years ago, the character of the plaintiff was very bad so far as low habits, and the use of low language was concerned.

Inquirer (Perth, WA : 1840 – 1855); 20 April 1842; Page 3; In the Civil Court

The court case was essentially an example of ‘he said she said’ with the truth most likely lying somewhere in the middle. Jane may have been a little uncouth by 1840s standards but there was also no doubt from Thomas’s letters that there was affection and an agreement to marry. The jury came to the same conclusion and while they did not award Jane the rather exorbitant £2,000, they did however award her £75 in damages.

Six of Thomas’s letters were printed in their entirety in the Inquirer. One would think that with their personal lives exposed before the court and further in the local newspaper that a rekindling of their relationship would be inconceivable. Nevertheless, rekindle they did.

The details are unfortunately scant however sometime between 1842 and 1845 all was forgiven. Thomas was living on his property ‘Woodlands’ in York and at some point Jane joined him. They did not marry but chose to live together and in 1845 a daughter was born. They named her Fanny Sarah Heal.

Throughout their courtship Thomas gave the impression to many people that he did not need approval and that “his father had told him to marry whom he pleased, so he could find a girl likely to make him happy.” It was far from the truth and explains why he did not marry Jane. She may have made him happy but their connection was not deemed suitable.

On 13 March 1849, Thomas boarded the ‘Fanny Fisher‘ and left Western Australia. A year later he married Harriet Sophia Shotter, the daughter of a yeoman who lived near his hometown of Godalming in Surrey. It is not known where Jane and Fanny resided during this time but it would seem they stayed in Western Australia with their extended family.

Thomas and Harriet had two daughters, one of whom died in infancy. In 1861 Harriet died at the young age of 31. Thomas remained in England. He had retained his properties in Western Australia and continued his connection with the colony by becoming a member of the Western Australian Association in London. Throughout that time he most likely continued corresponding with Jane and his daughter, Fanny.

The reasons why he could not marry Jane in the 1840s were much too strong to overcome. By the 1860s, and having already been married once, it would appear that those reasons no longer mattered.

On 5 January 1862, Jane and Fanny left Perth and sailed on the ‘Gloucester‘ bound for London. The journey took three months and one month after their arrival, on 3 May 1862, Thomas and Jane were married in All Saints Church in St Johns Wood. Witnessing their union was another settler, Charles Wittenoom, as well as their daughter, Fanny.

Courtesy of the London Metropolitan Archives.

20 years had passed since the breach of promise case was initiated and finally (in the eyes of the law) they were together. Notices were placed in English newspapers and one was especially placed in the Western Australian newspaper, The Perth Gazette and Independent Journal of Politics and News.

Thomas and Jane were married for nine years until Thomas’s death on 16 February 1871. Jane died 35 years later on 30 June 1906 and left her entire Estate (valued at £3,667) to Fanny.

Apart from Thomas’s letters, we have no way of knowing all their thoughts and feelings throughout the years. All Thomas appeared to be searching for in 1841 was happiness and at times he seemed resigned that it would be forever out of his grasp. Paths lay before them and they made the best decisions they could at the time. Separate journeys ensued but in the end they returned to each other.

Jane my best beloved shall we be happy? I firmly and conscientiously believe so, if we really love we must inevitably be. [T. Mellersh]

Inquirer (Perth, WA : 1840 – 1855); 20 April 1842; Page 3; In the Civil Court



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