In this tale, our father figure, Lord Macdonald Duncan, goes to great lengths to have Miss Cassandra Whitchurch declared dead, along with a fictional husband to create a story for the child Cassandra left behind and to protect his son Benjamin and the woman Benjamin’s wishes to marry, Miss Victoria Whitchurch. But why was all the manipulation necessary?

In the Regency period, though some things still carried over into today, declaring a person missing and presumed dead does not make them so. Cassandra’s husband is declared one of the men who died upon the battlefields of Europe.

We have all heard tales of how the person must be missing for seven years to be accounted as dead, though, it was not a statutory limit. Each case was looked at and decided on its own facts.

Even today, Lord Bingham had to wait some time before the courts would declare his father as presumed dead and then that applied only to his estate. This was the case of Richard John Bingham, 7th Earl of Lucan (born 18 December 1934 – disappeared 8 November 1974, who was declared dead on 27 October 1999). Bingham was commonly known as Lord Lucan. He was a British peer and gambler who vanished in 1974 after being suspected of killing his children’s nanny and attempting to murder his wife. It was only recently that the House of Lords accepted that Lord Lucan was probably dead and allowed his son to succeed to the earldom. 

Any matter of someone dying in war or elsewhere would be looked at concerning the age of the man who had disappeared and how many years it had been since then, and whether a man of his age would likely still be alive. As in the Lucan case, the peer already had a son and  a decision could finally be made. If a young man disappeared, the peerage went dormant  because it was possible that the man had been alive, married and had a legitimate son.

Naturally, to avoid all these entanglements, I wrote the child’s “pretend” father as a man of the gentry who was lost in war. No entanglements necessary for the story to progress. The child will be raised by his aunt and her new husband. He will be given a gentleman’s education and assisted with an occupation when he is old enough to make his way in the world.

The courts were never very quick to hand down peerages. It did not much matter to the world at large if a man were an earl or not. One could not touch or hold a peerage and whether or not someone held one was unimportant in the general scheme of things. What was important in the world was property.

Other than the laws against murder, most laws started out as laws to protect property.

In some ways, the earlier laws against killing a human were property laws because most people belonged to someone — some family patriarch, chief, Lord, overlord, King, emperor.

It is best if property has an owner. So the courts were more willing to declare a man presumed dead so that his estate could be passed along.

A distribution of a man’s property, according to his will and the succession according to deeds and entail could take place because all distributions were accompanied by the information that the property would have to be returned if the man returned. If it became necessary to sell a piece of property, permission would sometimes have to be sought from the court system, and, at times, even from parliament for a private bill.

Married women were in a suspended state when the husband went missing. If he had set up power of attorney, that prevailed especially if there was a son who was the natural and legal heir.

A problem arose if a woman wanted to marry again. Some had the husband declared missing and presumed dead to enable the woman to remarry. In 99 cases out of 100, there was no problem because the man was dead. In that one case (the ones we read about and devour on our Kindles), he returns. When he returns, the supposed widow is still married to the first husband and the second marriage is bigamous and the children are now illegitimate.  However, having had the man declared dead, protects the woman from being charged with bigamy and adultery. The returned husband cannot charge her with adultery no matter how many children she has had by the other man.

Of course, the other man finds his sons illegitimate. Even if the first husband dies or divorces his wife, the children can never be made legitimate in England.