Fact or Fiction: Fanny Beardsley’s Baby & Inheritance
March 12, 2020Guest Post from Traci Thompson
In our last Outlander “fact or fiction,” we examined North Carolina land grants. In this installment, we will take a look at North Carolina inheritance law as it relates to the story.
Season five episode Free Will, in a stellar adaptation, recently dealt with the creepy Beardsley family storyline. In both the book and the show, a child is born to Fanny Beardsley, and it is revealed that the baby (who is later named Alicia) is not her husband’s and is of mixed race. In the book The Fiery Cross, Claire and Jamie have this discussion:
“Do you think we ought to take her?” I asked cautiously. “I mean – what might happen to her if we don’t?” Jamie snorted faintly, dropping his arm, and leaned back against the wall of the house. He wiped his nose, and tilted his head toward the faint rumble of voices that came through the chinked logs. “She’d be well cared for, Sassenach. She’s in the way of being an heiress, ken.” That aspect of the matter hadn’t occurred to me at all. “Are you sure?” I said dubiously. “I mean, the Beardsleys are both gone, but as she’s illegitimate –“ He shook his head, interrupting me. “Nay, she’s legitimate.” “But she can’t be. No one realizes it yet except you and me, but her father – “Her father was Aaron Beardsley, so far as the law is concerned,” he informed me. “By English law, a child born in wedlock is the legal child – and heir – of the husband, even if it is known for a fact that the mother committed adultery. And yon woman did say that Beardsley married her, no?” It struck me that he was remarkably positive about this particular provision of English law…”I see,” I said slowly. “So little Nameless will inherit all Beardsley’s property, even after they discover that he can’t have been her father. That’s…reassuring.” “Aye,” he said quietly…”So ye see,” he went on, matter-of-factly, “she’s in no danger of neglect. An Orphan Court would give Beardsley’s property – goats and all” – he added, with a faint grin – “to whomever is her guardian, to be used for her welfare.”
– The Fiery Cross, Chapter 31, “Orphan of the Storm,” p. 510-511.
Jamie is certainly correct that the colony of North Carolina was under English law. But should he be quite so certain about the nature of bastardy, adultery, and inheritance under that law?

In reality, English law was not straightforward nor one-size-fits-all on the issue of legitimacy. Sir William Blackstone, in his commentary on English law (1765-69) declared that some circumstances would make children born in wedlock bastards in the eyes of the law:
“As bastards may be born before the coverture or marriage state has begun, or after it has been determined, so also children born during wedlock may in some circumstances be bastards…”1
One reason given by Blackstone was if it were known to be impossible for the man to have fathered a child, such as not being physically present with his wife at time of conception:
“So also if there is an apparent impossibility of procreation on the part of the husband…there the issue of the wife shall be bastards.”2
Determining legitimacy was very important in an intestate situation because under English law intestate inheritance was by lineal blood3; thus such terms as “the heirs of his body” and “of the blood” are often seen in reference to legitimate children. By contrast, illegitimate children were legally considered a “filius nullius” or “nullius filii, “child of no one” or “sons of nobody”:
“BASTARDS are incapable of being heirs. Bastards, by our law, are such children as are not born either in lawful wedlock, or within a competent time after its determination. Such are held to be nullius filii, the sons of nobody; for the maxim of law is, qui ex damnato coitu nascuntur, inter liberos non computantur [the offspring of an illicit connection are not reckoned as children]. Being thus the sons of nobody, they have no blood in them, at least no inheritable blood; consequently, none of the blood of the first purchaser: and therefore, if there be no other claimant than such illegitimate children, the land shall escheat to the lord.” 4

While the law did generally lean towards a presumption of legitimacy in the case of children born to married women, this was only in absence of obvious evidence to the contrary. As the racial factor made Fanny Beardsley’s child an obvious bastard to Claire, so her appearance would have to colonial society as a whole. “Judicial error was tolerated when it meant that a white child, unrelated by blood, would be made a white man’s legal heir. An African-American child becoming a white man’s legal heir, however, was unacceptable. Faced with this situation, the court essentially suspended application of the presumption.”5 Although it certainly happened – and often – miscegenation was against colonial law at this time, which would automatically render any marriage void, and therefore any offspring illegitimate:
“North Carolina followed suit [with miscegenation laws] in 1715 providing that ‘no White man or woman shall intermarry with any Negro, Mulatto or Indyan Man or Woman under the penalty of Fifty Pounds for each White man or woman.’ In 1741, the North Carolina act was amended to more closely track the earlier Virginia statute: ‘And for Prevention of that abominable Mixture and spurious issue, which hereafter may increase in this Government, by white Men and women intermarrying with Indians, Negroes, Mustees, or Mulattoes, Be it Enacted, by the Authority aforesaid, That if any white Man or Woman, being free, shall intermarry with an Indian, Negro, Mustee, or Mulatto Man or Woman, or any Person of Mixed Blood, to the Third Generation, bond or free, he shall, by Judgment of the County Court, forfeit and pay the Sum of Fifty Pounds, Proclamation Money, to the Use of the Parish.’”6

As we see here, unfortunately for Fanny’s child, several strikes would be against her were she a real person. If Aaron Beardsley did not dispose of his property by will, intestate inheritance law would immediately come into play, and an inquiry into the identity of any legitimate lineal heirs would be undertaken by the county court. Aaron Beardsley’s incapacity would not likely factor in, as he had only been in that state for about a month when Jamie and Claire showed up, and thus could have fathered a child before that time. However, the fact that he was not apparently able to father a child with any of his previous wives could have raised doubt and become an issue. But the definitive reckoning would be the child’s mixed-race parentage, which the books and show indicate was obvious by the child’s physical appearance. If it were known or believed that Aaron Beardsley was a white man, and it was thought that the child was anything other, then a status of illegitimacy would automatically follow, which would absolutely eliminate inheritance.
Verdict: FICTION
Bonus Trivia: Did you know? An “orphan” was legally a child whose father was deceased, regardless of the status of the mother.7 After 1799 in North Carolina, a change in state law recognized illegitimate children as heirs of their mother and were enabled to inherit from her.8
Sadly, the past was not kind to babies born out of wedlock, and little “Bonnie” would not have been an exception. Are you on Jamie’s side–hopeful that wee “Bonnie” will inherit the Beardsley property, or will she have to rely on her new adoptive parents for her raising? From the looks of the scene where Lucinda and her husband ask Claire if they can keep the baby, she will not lack for love at all. Tell us what you think!

Thanks, Traci, for this insight about bastardy and inheritance laws! Traci Thompson is a married mother of two who lives in eastern North Carolina, and is, of course, an avid Outlander fan. Traci is a Certified Genealogist and Local History & Genealogy Librarian. She is a contributing author for Outlander North Carolina.
Footnotes:
1. Sir William Blackstone, Commentaries on the Laws of England, 4 volumes (Oxford: Clarendon Press, 1765-69), 1st ed., Volume 1, “The Rights of Persons,” Chapter 16, “Of Parent and Child”; digital transcription, The Avalon Project (https://avalon.law.yale.edu/18th_century/blackstone_bk1ch16.asp : accessed 2020).
2. Blackstone, Commentaries on the Laws of England.
3. Blackstone, Commentaries on the Laws of England, Volume 2, Chapter 14.
4. Blackstone, Commentaries on the Laws of England, Volume 2, Chapter 15.
5. Mary Louise Fellows, “The Law of Legitimacy: An Instrument of Procreative Power,” Scholarship Repository University of Minnesota Law School, 1993 (https://scholarship.law.umn.edu/ : accessed 2020), p. 502.
6. Judy G. Russell, “Intermarriage and the Law, Colonial Style,” The Legal Genealogist 1 June 2012 (https://www.legalgenealogist.com/2012/06/01/intermarriage-and-the-law-colonial-style/ : accessed 2020).
7. Raymond A. Winslow, Jr., “Estates Records,” in Helen F.M. Leary, editor, North Carolina Research: Genealogy and Local History, 2nd edition (Raleigh, NC: North Carolina Genealogical Society, 1996), chapter 12, p. 189, “Guardians and Conservators.”
8. John Haywood, Esq., A Manual of the Laws of North Carolina (Raleigh, NC: J. Gales, 1814), p. 274, “Intestate’s Estate,” section IV, 1799.
Photos from Outlander Online
The NC History Behind The Outlander Story
March 7, 2020Memories of Fraser’s Ridge Homecoming 2019
October 26, 2019Fact or Fiction? Jamie Fraser & North Carolina Land Grants
August 16, 2019Guest post from Traci Thompson
“It has long been the policy both of the Crown and of myself, Mr. Fraser, to encourage the settlement of land in the Colony of North Carolina by intelligent, industrious, and godly families, to the furtherance of the prosperity and security of all.” He lifted his cigar, took a deep lungful and exhaled slowly, pausing to cough. “To this end, sir, there is established a system of land grants whereby a large acreage may be given to a gentleman of means, who will undertake to persuade a number of emigrants to come and settle upon a part of it under his sponsorship. This policy has been blessed with success over the last thirty years; a good many Highlanders and families from the Isles of Scotland have been induced to come and take up residence here. Why, when I arrived, I was astonished to find the banks of the Cape Fear River quite thick with MacNeills, Buchanans, Grahams, and Campbells!”
The Governor tasted his cigar again, but this time the barest nip; he was anxious to make his point.
“Yet there remains a great deal of desirable land to be settled, further inland towards the mountains. It is somewhat remote, and yet, as you say, for men accustomed to the far reaches of the Scottish Highlands – “
“I did hear mentions of such grants, sir,” Jamie interrupted. “Yet is not the wording that persons holding such grants shall be white males, Protestant, and above thirty years of age? And this statement holds the force of law?”
“That is the official wording of the Act, yes.” Mr. Tryon turned so that I saw him now in profile, tapping the ash from his cigar into a small porcelain bowl. The corner of his mouth was turned up in anticipation; the face of a fisherman who feels the first twitch on his line.
“The offer is one of considerable interest,” Jamie said formally. “I must point out, however, that I am not a Protestant, nor are most of my kinsmen.”
The Governor pursed his lips in deprecation, lifting one brow.
“You are neither a Jew nor a Negro. I may speak as one gentleman to another, may I not? In all frankness, Mr. Fraser, there is the law, and then there is what is done.” He raised his glass with a small smile, setting the hook. “And I am convinced that you understand that as well as I do.”
“Possibly better,” Jamie murmured, with a polite smile.
~Drums of Autumn, Chapter 7, “Great Prospects Fraught With Peril.” (Circa 1767)
These paragraphs from Drums of Autumn introduced a long-running source of conflict for the story by giving Governor Tryon a certain leverage over Jamie – if Jamie doesn’t toe the line with Tryon, will Tryon play the religion card, “expose” Jamie as a Catholic, and take his land away from him?
But how much weight does this threat really carry…and are the details historical fact, or historical fiction?
First, as a land grant is central to the story, let’s take a brief look at what a North Carolina land grant was. Although “land grant” is the term often used, the technical term was “land patent.” Land patents transferred vacant land from a granting authority to a private person. North Carolina patents did not convey “free” land; grants were for some kind of service to the colony, or for a required payment of fees. There were two land grant systems in North Carolina: one was headright patents, in which land was granted for the service of bringing settlers into the colony, with a certain number of acres granted per transported person. This system ended by 1754, before Jamie and Claire’s time in NC. The second was purchase patent, land in exchange for fees paid at every step in the process. By the mid-1750’s, this was the only kind of patent granted in North Carolina, and thus the kind of grant Jamie would have received if he were really here in the 1760s.(1)
There were in fact a few, but not many, of enterprises such as Tryon describes: “…a large acreage may be given to a gentleman of means, who will undertake to persuade a number of emigrants to come and settle upon a part of it under his sponsorship.” These were a type of headright patent, as the stipulation was bringing in emigrants to populate the colony. Harry Merrens states in Colonial North Carolina in the Eighteenth Century, “Grants were generally small…A few persons did manage to obtain large quantities of land either for speculative purposes or for building up large estates. Extensive holdings of land were so rare that neither practice was common…”(2)
The most notable person who engaged in this rare land speculation in NC was Henry McCulloh, a London merchant and colonial official whose family roots were in Scotland. He received two grants in his own name of 60,000 and 72,000 acres, and a third under the names of two of his trustees for 1.2 million acres. The condition of these grants was that quitrents on the lands be paid, and that settlers be installed on the land (3):
“At a Council held at Wilmington [NC] the 24th day September 1741… His Excellency having informed the Board That it was His Majesty’s Pleasure signified in some of his Majesty’s Instructions to Mr. McCulloh, that for the future all persons taking up lands should be obliged to seat the same according to their rights, i.e. with the person in whose right the land shall be taken up; But that such as have already obtained Warrants, shall only be obliged within three years from the date of their respective Grants to put a white man on every Tract 1,000 acres or under And two on a tract of 2,000 or above a thousand…And that the Secretary draw up a proclamation to give publick notice thereof…His Excellency…took notice of the absolute necessity of encouraging white persons to settle in this Province particularly the back parts of the same…” (4)

Merrens calls McCulloh “the unrivaled leading speculator in North Carolina” and reports that he was “’hawking it [the land] about in small quantities thro’ all the back parts of the Province and quite thro’ America even to Boston’”(5) as well as transporting Ulster Scots and Swiss emigrants into the colony.
But what of the “Protestant” requirement? McCulloh’s petitions for his grants in the 1730s do include wording such as “…Praying for a Grant of Twelve hundred Thousand Acres of Land in North Carolina in Consideration of Settling 6000 Protestants…” (6) and “…praying for a Grant of Lands upon the heads of the Pedee Cape Fear and Neus Rivers in North Carolina, and proposing to make a Settlement thereon of six thousand Swiss Palatines and other Foreign Protestants within the space of Ten years from the Date of {the} Grant…” (7) Other earlier petitions have the same wording, such as a 1679 petition to the British Privy Council to transport “about 80 Protestant families to Carolina aboard the frigate Richmond” and a request from Normandy seeking “sanction and assistance in projected planting of about fourscore Foreign Protestant families, being skilled in the Manufactures of Silks, Oyles, Wines, etc. who are willing to settle in Carolina.” (8) What is the reason for this? The religious situation in Europe was one of many reasons for emigration during this period, especially the desire to seek freedom of worship. Speculators such as Henry McCulloh were aware of the need to transport Protestants – particularly Scots-Irish, Swiss, and Germans – to the colonies. And as the Crown needed settlers and revenue, this was a win-win situation for all involved. (9) Another consideration for the Crown may have been loyalty, as Protestants were less likely to have divided allegiances. The greater number of Protestant settlers in North Carolina led to the statement made by the real Governor Tryon in 1765 that “every sect of religion abounds here except Roman Catholicism.” (10)
What is important to realize is that these references to settlement of Protestants in North Carolina did not refer to land law. In fact, North Carolina, especially as compared to the other colonies, was liberal in regards to religion. While there certainly was anti-Catholic sentiment, the only specific discrimination against them in legal policy regarded holding public office, and instructions given to the Royal Governor in the 1730s to permit “a liberty of conscience to all persons (except papists).” (11) It is likely that such instructions fell under Governor Tryon’s assertion that “there is the law, and then there is what is done,” as many such instructions relating to the Church of England were never able to be enforced in North Carolina. In 1679, the instructions of the Lords Proprietors to the Governor of Albemarle County, NC stated, “You are to take notice that wee doe grant unto all free persons that doe come to plant in Carolina before the 25th day of December, 1684…sixty akers of land…” and makes no mention of religion. (12) And not all of the land speculators’ petitions included the “Protestant” wording – McCulloh’s proposal of 1735/6 mentions sending over workmen and “such people as I intend to send there from Europe” to North Carolina and does not mention religion. (13)
A far more important consideration to the Crown regarding land patents was, as with most enterprises, money. Much of the energy and focus of the government documents relating to land grants of the period revolve around revenue generated or, most notably, the lack thereof. Even money took a back seat at times to the pressing need to simply have people in the colonies; in 1715, by decree from London, even impoverished families that could not pay rent were not to be deprived of their land, and those that had been were to have their property restored. (14) Also, land grants were a clear title in fee simple; the owner could sell or devise land absolutely at his pleasure and without consultation with government officials. (15)
These questions having been discussed, what of the age requirement? The 1679 document mentioned earlier made the specific provision for “sixty akers of land” to any free person who was “above the age of sixteen yeares.” (16) North Carolina, being an English colony, followed English common law; under English law one could buy or be granted land at any age but could not sell it in his own name until he arrived at the age of 21. (17)
As this overview shows, populating the colony and generating revenue were important considerations to North Carolina officials of the colonial period. To purposely attempt to divest a settler of his land would run contrary to the goal and would in fact be illegal; to do this for religious reasons in a tolerant colony would be difficult if not impossible, and there was no legal age restriction on land ownership. Happily, were Jamie actually here in the 1760s, he would not have had these issues to worry about.
The case: Are the details historical fact, or historical fiction?
Verdict: FICTION.

There you have it–straight from a North Carolina genealogist’s pen! Thanks, Traci, for this insight about land grants and the many different cultures that emigrated and settled here to make up this great state!
Traci Thompson is a married mother of two who lives in eastern North Carolina, and is, of course, an avid Outlander fan. Traci is a Certified Genealogist and Local History & Genealogy Librarian. She is a contributing author for Outlander North Carolina.
Still shots of Jamie/Gov. Tryon are from https://outlander-online.com
Reference notes:
1 Margaret M. Hofmann, “Land Grants,” in Helen F.M. Leary, editor, North Carolina Research: Genealogy and Local History, 2nd edition (Raleigh, NC: North Carolina Genealogical Society, 1996), chapter 31.
2 Harry Roy Merrens, Colonial North Carolina in the Eighteenth Century: A Study in Historical Geography (Chapel Hill, NC: UNC Press, 1964), p. 25-26.
3 Mattie Russell, “McCulloh, Henry,” NCPedia (https://www.ncpedia.org/biography/mcculloh-henry : accessed 2019), citing William S. Powell, ed., The Dictionary of North Carolina Biography (Chapel Hill, NC: UNC Press, 1991.)
4 “Minutes of the North Carolina Governor’s Council, September 21, 1741 – September 29, 1741,” “Colonial and State Records of North Carolina,” Documenting the American South, University of North Carolina at Chapel Hill (https://docsouth.unc.edu/csr/index.php/document/csr04-0177 : accessed 2019); citing volume 4, p. 597-603
5 Merrens, Colonial North Carolina in the Eighteenth Century: A Study in Historical Geography, p. 26.
6 “Declaration by Murray Crymble and James Huey concerning their actions as agents for Henry McCulloh,” in “Colonial and State Records of North Carolina,” Documenting the American South, University of North Carolina at Chapel Hill (https://docsouth.unc.edu/csr/index.php/document/csr05-0289 : accessed 2019); citing volume 5, p. 769.
7 “Order of the Privy Council of Great Britain concerning Henry McCulloh’s land grants in North Carolina,” Great Britain, Privy Council, May 19, 1737, in “Colonial and State Records of North Carolina,” Documenting the American South, University of North Carolina at Chapel Hill (https://docsouth.unc.edu/csr/index.php/document/csr05-0289 : accessed 2019); citing volume 4, p. 253-254.
8 Finding aid to the British Records: Privy Council, citing Office Register, 21 April 1679-29 May 1680, Public Record Office, London, England, P.C. 2/68, North Carolina State Archives, Raleigh; digital images (https://files.nc.gov/dncrarchives/documents/files/ffa_br_privycouncil.pdf : accessed 2019).
9 Stewart E. Dunaway, Henry McCulloh & Son Henry Eustace McCulloh: 18th Century Entrepreneurs, Land Speculators of North Carolina (Lulu.com: Dunaway, 2014), p. 16.
10 Anne Russell & Marjorie Megivern, North Carolina Portraits of Faith: A Pictorial History of Religions (Norfolk, VA: The Donning Company, 1986), p. 136.
11 “Instructions to George Burrington concerning the government of North Carolina George II, King of Great Britain, 1683-1760; Great Britain. Board of Trade,” in “Colonial and State Records of North Carolina,” Documenting American South, University of North Carolina at Chapel Hill (https://docsouth.unc.edu/csr/index.php/document/csr03-0060 : accessed 2019); citing volume 3, p. 90-118.
12 “Instructions to the Governor of Albemarle County Carolina. Lords Proprietors. February 05, 1679,” in “Colonial and State Records of North Carolina,” Documenting the American South , University of North Carolina at Chapel Hill (https://docsouth.unc.edu/csr/index.php/document/csr01-0098: accessed 2019); citing volume 1, p. 235-239.
13 “Proposal by Henry McCulloh concerning his efforts to settle people in North Carolina,” in “Colonial and State Records of North Carolina,” Documenting the American South , University of North Carolina at Chapel Hill (https://docsouth.unc.edu/csr/index.php/document/csr05-0289 : accessed 2019); citing volume 4, p. 156.
14 David Southern and Louis P. Towles, “Land Grants and the Recruitment of Settlers to the Carolina Colony,” NCPedia (https://www.ncpedia.org/land-grants-part-3-land-grants-and : accessed 2019), citing William S. Powell, ed., Encyclopedia of North Carolina (Chapel Hill, NC: UNC Press, 2006.)
15 George Stevenson, “Foreword” (Raleigh, NC, June 1982) to Margaret M. Hofmann, Colony of North Carolina, 1735-1764, Abstracts of Land Patents Volume One (Weldon, NC: Roanoke News Company, 1982).
16 “Instructions to the Governor of Albemarle County. Carolina. Lords Proprietors. February 05, 1679,” in “Colonial and State Records of North Carolina,” Documenting the American South, University of North Carolina at Chapel Hill (https://docsouth.unc.edu/csr/index.php/document/csr01-0098 : accessed 2019); citing volume 1, p. 235-239.
17 Lee Albright & Helen F.M. Leary, “Strategy for Land Records,” p. 43, in Helen F.M. Leary, editor, North Carolina Research: Genealogy and Local History, 2nd edition (Raleigh, NC: North Carolina Genealogical Society, 1996), chapter 2, “Designing Research Strategies.”