Guest 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.
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.
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.
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