In my analysis of Josiah and Jesse Stallings, the issue of illegitimate birth is raised when interpreting those crazy deeds.

It is highly likely that the reason Josiah and John Stallings are identified by the phrase “called the son of Susannah Moody” and “called the son of Candace Odom” is that their respective fathers were named Stallings and were not married to Susannah and Candace.

You may also find the term “common law marriage” used in these situations. Barbara Langdon published a very useful book Barnwell County Marriages, 1764-1859: Implied in Barnwell County, S.C. Deeds. In it, she notes “common law marriage” for any deed that deals with illegitimate children.

I reviewed all the deeds Langdon identified with “common law marriage.” Any time a father conveyed property to his illegitimate children, the deed would state that the child was his and most also included gift deed language: “for and in consideration of the love and affection …”. Following are some excerpts.

“by love and affection, as also by other notions…moving, as also in consideration of fifty dollars in hand paid…unto Margaret, Daniel, Elenor, and William Parker Gordon, sons and daughters of Margaret Parker a tract of land whereon now live…”.

Conveyance by Patrick Gordon, Barnwell County Deeds Book F, page 134

“for and in consideration of the love and affection that I do bear towards Elizabeth Bright and the children I have had by her by living with me…” ..

Conveyance by Thomas Green, Barnwell County Deeds Book M, page 129

“for and in consideration of the love good will and affection which I have and do bear towards my two children namely Also B. Mallard and Sary Ann E. Mallard”

Conveyance by John Middleton, Barnwell County Deeds Book T, page 85

Do I call you a criminal?

One of the reasons deeds were used to give property to illegitimate children is that they could not inherit. Illegitimate children did not have the same rights as children born from a marriage, and having an illegitimate child could result in criminal prosecution.

The act of assembly of 1795, enacts that if any white woman be delivered of a bastard child, and shall, after the birth, voluntarily give information that such child will become a burthen to the district, and will declare who the father is, the magistrate, before whom the information is given, shall issue his warrant to apprehend the putative father, who shall enter into a recognizance, &c. And should the person so accused refuse to enter into a recognizance, &c., he shall be committed to prison until he shall comply; or, should he deny he is the father, a jury shall be charged to try the question whether he is the father or not.

State v. Clark, 4 S.C.L. 386, 387 (S.C. Const. App. 1810)

Better pay up!

If you are investigating a possible illegitimate birth in this early time period, be sure to check out the court minutes. Mothers were called before the judge to identify the father and the father was required to a post bond to offset the government’s financial responsibility of caring for the child. Following is a particularly entry from the minutes of the Winton County court.

The County against Elizabeth Myrick bastardy

Elizb. Myrick came into Court and swore that Dennis Murphey of the Congaree is father of a bastard child called Lany; that the father of John another bastard child is Edward Southwell, deceased; that the father of Mary another bastard child was also the said Edward Southwell and that the father of Sarah, another base born child is William Southwell. The Court fined the said Elizabeth Myrick fifteen pounds proclamation money to be paid within nine months.

The court have ordered that Sieri facias be issued against Dennis Murphey of the Congaree and William Southwell of Winton County to show cause why fines should not be levied on their estates.

…

State vs That/Eli Myrick appear within one month at the clerks office and give security to indemnify the county for the maintenance and support of the following illegitimate children Amy, John, Mary & Sarah fifty pounds each.

Winton County Court Minutes 17th Oct. 1787; 18th Jan 1788
Transcribed in Winton (Barnwell) County South Carolina Minutes of County Court and Will Book 1785-1791
by Brent H. Holcomb

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