By Elaine Clark
The American Journal of Legal History, Vol. 34, No. 2 (1990)
Introduction: The extent to which English towns protected children during the Middle Ages is known only in broad outline. The historical record first acquires detail in centuries of urban growth, particularly in the twelfth and thirteenth, when custumals in all parts of England provided for the wardship of orphans, that is, underage children who had suffered the loss of fathers but not necessarily mothers. The vulnerability of these children occasioned public concern and brought into focus questions of the legal status and competence of the young. By the turn of the thirteenth century, urban officials and commentators alike emphasized the limited capacity of children at law. During late centuries, too, the legal view prevailed that childhood was a distinct stage of life. Urban law recognized the dependency of the young and spoke not so much of the rights of children but of the needs they had for protection and support. Although the everyday lives of boys and girls generated less interest, the plight of homeless children attracted notice. Yet neither the behavior of orphans and wards, nor the varied problems they faced, can be fully gauged by reading chronicles and custumals alone. Both address admittedly important issues concerning property relations and urban politics but leave largely unexplored the dialectic between private systems of support and family life. The problem here is to learn whether the community and the family actually shared a sense of responsibility for the custody and welfare of dependent children.
The best evidence we have covers the decades before and after the Black Death (1348-50). In fact little quantitative information survives until the fourteenth century when there are court proceedings that describe the custody of orphans but only in London and Bristol. What makes their records notable is the quality and detail of the testimony they preserve from a wide range of people including city officials, stepparents, and widows. All implied that the welfare of orphans depended in large measure on the concern and involvement of economically privileged adults. This is not to say that urban law was without effect. It certainly defined the parameters of custodial practice in London and Bristol. Yet municipal government aided children indirectly at best. Despite the intervention of courts, it was the household rather than the municipality that constituted the major source of support for city orphans.
That London and Bristol regulated wardship in much the same way has long been known. As early as the 1270s the mayor and aldermen of London sat as a court in the Inner Chamber of the city’s guildhall where, among other matters, they discussed and arranged the custody of underage heirs. The mayor of Bristol maintained his authority over minors through hundred courts held in the town’s guildhall. In Bristol, as in London, officials made the guardianship of orphans a matter of public concern in order to protect inheritances. The nature of this protection was primarily defined by the liberties that municipal authorities had won from English kings. According to Bristol’s charter of 1331, the mayor had the right to appoint guardians for all underage heirs and the authority to receive the bonds and recognizances needed to safeguard the inheritances of orphans. In London, too, guardians had to provide surety and follow directives set by the mayor and his court. Together they claimed that the custody of the persons and property of orphans belonged to the city.