Guardianship Bonds in England and Wales
In medieval times young people whose parents died leaving them the heirs to landed property which was subject to military service, left them also, in effect, to the mercy of those from whom that land was held. This might be some local or more distant lord or the Crown. In theory the lord would protect them from their next-of-kin whilst educating them in his service.
In practice the lord would take custody of the child and receive the profit from its land. If the child were a boy this would continue until he reached the age of twenty-one; if a girl until she was fourteen. On coming of age the boy would pay a fine of half a year’s profit to the lord. Both the boy and the girl might be required to marry someone of the lord’s choice. The boy might refuse but he would then forfeit to the lord the value in land and goods that the intended bride would have brought.
All this was a rich field for extortion. In the 14th century the Crown, the ‘supreme feudal landlord’, with rights of wardship over the heirs of their immediate tenants (the tenants in chief) also claimed to exercise similar rights over the infant heirs to freehold land. The Tudor monarchs systematically developed these rights as a source of revenue and in 1540 Henry the Eighth created the infamous Court of Wards to supervise the king’s wards. Many were then wholly impoverished by extortion.
The lawyer Henry Swinburne writing about this Court in 1640, spoke of ‘the insatiable covetousnesse of divers in these dayes’ by which an infant of slender discretion could be ‘bought and sold like a beast’. The court was abolished by Oliver Cromwell in 1656 by an Act which was confirmed in 1660 (and back dated to 1645). The records of the Court are at The National Archives; see Legal Records Information 11 ‘Court of Wards and Liveries: land inheritance 1540-1645’ at http://www.nationalarchives.gov.uk/records/research-guides/wards-and-liveries.htm.
The Act in 1660 turned land held by military service into the equivalent of freehold land. It abolished military tenure and all the resulting paraphernalia of wardship, marriage rights and fines on coming of age. By a very narrow margin it was agreed that the Crown should receive in compensation a grant of £100,000 a year from the excise duty on ‘beer, cyder, perry and strong waters’.
Tutors, Curators and Guardians
Much property was, of course, held without the obligation of military service and when a man or widow died leaving a young child as his or her heir, the deceased would often appoint a tutor or guardian to look after that child’s property until it came of age. The nomination would be approved by the church courts and, in cases where no one had been named, the court would itself appoint a suitable person.
A more distant relation or someone completely unrelated (a ‘stranger’) might also leave property to a child and, expecting to live until that child reached the age of twenty-one, make it an executor, but dying whilst the child was still a minor, the court would again appoint a guardian.
This guardian would be required to enter into a bond ‘for faithful tuition’, swearing to carry out the task to the best of his or her ability. He or she would also be required immediately to compile an inventory of the child’s possessions. If the children were boys under fourteen or girls under twelve, the bond entered into by the tutor was called a Tuition Bond, but if the children were between those ages and twenty-one then the bond entered into by the curator was called a Curation Bond. Together they are usually called Guardianship Bonds.
The way in which the system operated varied very considerably from place to place according to custom. It was held that those who had copyhold land were not affected by the 1660 Act and could not dispose by will of the custody of their infant heirs. Their custody still belonged to the lord of the manor (or to others according to the custom of the manor) until the child reached the age of fourteen when it would pay a fine and be admitted to the land in the usual way.
It was generally agreed, however, that where no provision had been made, a child over the age of seven could by law chose its own guardian. The court then decided if the child had made a proper choice and granted administration to that person. Women, other than mothers and grandmothers, could not be appointed, but in the Province of York any woman, married or not, could act.
In many amicable family situations there would not be any need for a formal document, but in cases where the widowed mother married again the child’s property might well be at risk and could be safeguarded by the appointment of a guardian. The appointment, indeed, might well be the prelude to legal action by the guardian on the child’s behalf and in many cases the formal appointment of a guardian was made merely so that a legacy due to the child could be claimed.
The child would make out a proxy under its own hand naming its guardian and the proctors who were to act in court on its behalf. The document transcribed below is a typical proxy of a minor appointing such a guardian to collect the rents due to him under his father’s will in 1743 [taken from the records of the Consistory Court of Winchester and illustrated in Arthur Willis, Winchester Guardianship Records after 1700 (1967)]:
Know all men by these presents That I John Hawkins the natural and lawful child of Joan Hawkins of Alton in the county of Southampton widow and devisee named in the last will and testament of Laurence Hawkins late of Alton aforesaid gentleman my father deceased, being a minor to witt of the age of twenty years and upwards but under the age of twenty one years and therefore incapable of recovering or receiving the rents issues and profits of all those messuages lands tenements and hereditaments scituate lying and being in Alton aforesaid given and devised unto me in and by the will of my said late father and of giving a discharge for the same in my name Do hereby elect and make choice of my said mother Joan Hawkins to be my curator or guardian to all intents and purposes in law whatsoever but more specially for me and in my name to ask demand and receive the rents issues and profits of the premises aforesaid so given and devised unto me in and by my sd father’s will And upon payment thereof to give sufficient discharges for the same And in case of refusall to sue for and recover the same according to due form of law And that this my election and choice may have its due effect in law I do hereby nominate constitute and appoint Thomas Hammond and Thomas Imber gentlemen procurators of the Consistory Court of Winchester or either of them or any other procurator of the sd court for me and in my name to appear before any competent judge in this behalf and to procure and desire this my proxy and election to be admitted and enacted and the said Joan Hawkins my mother to be assigned my curator and guardian to the purposes aforesaid and to all other effects and purposes in law whatsoever and to do and perform all other acts and things requisite and necessary to be done in the premises In witness whereof I have hereunto sett my hand and seal the twelfth day of Aprill in the year of our Lord one thousand seven hundred and forty three.
Sealed and delivered (being first John Hawkins
Duly stampt) in the presence of
Other examples, based on her experience in the records of the Consistory Court of Lichfield, are illustrated in Anne Tarver, Church Court Records (Phillimore, 1995) [not in FHL]. At Lichfield the proxy documents were often sworn by the younger children out of court hours in the house of one of the proctors in the Cathedral Close. An example in 1737 shows the guardianship of two children under the age of seven being granted (on his application) to the overseer of their father’s will to ensure the security of their legacies following their mother’s re-marriage.
There are some fascinating examples of the costs of bringing up children, again from the Lichfield records, taken from disputed probate accounts arising from cases of this kind (called ‘subtraction of legacy’ cases), all in the 1690s, in a section, also by Anne Tarver, in Tom Arkell, Nesta Evans and Nigel Goose, eds., When death do us part (Oxford, England: Leopard’s Head Press, 2000) pages 247-51 [FHL book 942 P27].
The appointment of guardians in wills is found from early times but the 1660 Act which abolished feudal tenures and the Court of Wards also gave explicit powers to men to appoint, by will or deed, guardians for their unmarried children under the age of twenty one, provided that the person appointed was not a Catholic, and regardless of any other claim.
In 1754 Colonel John Jordan left his personal estate to his only child, a daughter who was not yet fifteen. He named three trustees and if she married without their consent she was only to have a shilling. He forgot to have his will witnessed or to name any executors. The daughter chose one of the trustees as her sole guardian. The church court was not bound to grant guardianship to a trustee, nor was it bound to grant it to the minor’s nominee, but the Prerogative Court granted administration (with will annexed) to the trustee of her choice.
In another example John Hervey in his will in 1751 devised his property to his nephew Thomas Appleby and made him his executor, appointing Elizabeth Appleby the boy’s grandmother and Richard King his guardians and trustees. In fact he had no power to appoint guardians, the child not being his. The boy was eight years old and chose his mother, Hannah Appleby, to be his guardian. The Court, however, granted administration (with will annexed) to the grandmother, she being the trustee named in the will.
Bonds seems to be most frequently found when the church courts were at the height of their powers before the Commonwealth and then again after about 1670, but they peter out in the course of the 18th century.
In many courts the tuition and curation bonds were filed with the original wills and administrations but in some courts they were kept in a separate series. The orders of the court, approving or granting guardianship, were sometimes recorded in special registers, or in a book of general licences. Where there are separate series of bonds or special registers these are listed under each court in Anthony J. Camp, Wills and their whereabouts (London: The author, 1974).
The City of London and the Boroughs of Bristol and Exeter had special rights to administer the goods of orphans within their walls.
In the City of London the Court of Aldermen by custom had the custody of orphans of freemen and supervised their estates. Its Court of Orphans developed a separate series of records in the 16th century and there are inventories 1662-1742 and 1764-73, recognizances for their production 1590-1747, and summaries of their contents 1586-1614 and 1662-1773, showing the division of estates, at the London Metropolitan Archives (CLA/002).
By a charter of Edward III in 1331, confirmed in 1373, the Mayor of Bristol was given the power to take recognisances for the security of estates of orphans of freemen of the City. Three large volumes of wills proved in various courts were recorded between 1379 and 1674. These registers, called Great Orphan Books, are at the Bristol Archives Office and the contents are listed in Index Library, volume 17 [FHL book 942 B4] and have been microfilmed [FHL film 1657877].
By a charter of Elizabeth I in 1561 the custody of orphans in the City of Exeter was granted to the City Chamber and the resulting wills and inventories, which continue to 1774, fortunately survived the bombing of Exeter and are now at the Devon Record Office where there is a card index which has been microfilmed [FHL films 1278569-71].
This article has been adapted with permission from Anthony Camp’s article, ‘Being a minor aged seven years and upwards … Guardianship Bonds’ in Family Tree Magazine (UK; http://www.family-tree.co.uk), vol. 18, no. 11 (September 2002).