60. A Bill concerning Guardians, Infants, Masters, and Apprentices
Be it enacted by the General Assembly, that any father, even if he be not twenty one years old, may, by deed, or last will and testament, either of them being executed in presence of two creditable witnesses, grant or devise the custody and tuition of his child, which had never been married, although it be not born, during any part of the infancy of such child, to whomsoever he will; and such grant or devise, heretofore or hereafter to be made, shall give the grantee or devisee the same power over the person of the child, as a guardian in common socage hath, and authorise him, by action of ravishment of ward, or trespass, to recover the child, with damages for the wrongful taking or detaining him or her, for his or her use, and, for the same use, to undertake the care and management, and receive the profits, of the wards estate real and personal, and prosecute and maintain any such action, and suits, concerning the same, as a guardian in common socage may do. The High Court of Chancery, generally, and the court of every county in chancery, within the limits of their jurisdiction, shall have power from time to time, to controul guardians, and hear and determine all matters between them and their wards: To require security of any guardian in socage, or statutory guardian, when that caution shall seem necessary for prevention of any damage his ward may suffer, by neglect, mismanagement, or malversation; and, if the security be refused, or delayed, or if such guardian appear to have been guilty of a flagrant abuse of trust, to displace him, and appoint another in his stead, and to give such directions, and make such rules and orders, as they shall think fit, for the government, maintenance, and education of wards, and preservation of their estates, and for the conduct of guardians. Every court appointing a guardian shall take bond of him, with sufficient surety, for the faithful execution of his office, and if any court omit this duty, or take such surety as shall not satisfy them of his sufficiency, which may be done as well by the surety’s affidavit as otherwise, the ward, by an action on the case against the Judges or Justices, so making default, may recover so much of the damages which the guardian and surety shall be answerable for as these shall be unable to pay. If any guardian refuse, or be unable, to give the surety required of him, the court may put the estate into the hands of a curator, the fittest they can prevail upon to undertake the care of it, to be accountable to them; and in that case shall not be sponsible for his ability. Every guardian or curator, to be appointed by any court, shall, at the term or session next afterwards, deliver into such court an inventory upon oath, of all the estate which he shall have received, to be entered of record, in a separate book, and such guardian or curator, and every guardian heretofore so appointed, shall exhibit to such court, once in every year, which if it be a county court, shall be in August, or at the next session, if there be none in that month; or oftener, if he be specially required, accounts upon oath,1 of the produce of the estate, of the sales and disposition of that produce and of the disbursements; which accounts shall be examined by the court, or by such persons as the court shall refer them to, and, being found and certified, or reported to be properly and fairly stated, and the articles thereof to be justified by the vouchers, and the report, in case of a reference, being approved and confirmed by the court, shall, with such certificate or confirmation, be entered of record in the book aforesaid: And if any article of such accounts, at any time afterwards, be excepted to by the ward or his representative, it shall be incumbent on him to prove or shew the falsity or injustice thereof, unless notice, on his behalf, shall have been given, at the time of passing the accounts, that such article would be excepted to, and a memorandum of that notice shall have been entered on record or desired to be entered. The court at any time when they shall know or have cause to suspect, that the surety of a guardian is failing, may require and compel such guardian to give supplemental security, or, if he refuse or neglect to do so, may displace him. A guardian who shall not deliver in such inventory and render such accounts as aforesaid, shall, by order of the court to which he is amenable, be summoned, and if he remain in default, be compelled to perform his duty, or be displaced, for which purpose the summons or other process from a county court may be directed to, and shall be executed by the sheriff, of any other county, wherein the guardian may be found; and every Judge or Justice of the court sitting therein, at any time during the term or session, in which the process ought to have been ordered, if it be not ordered accordingly, shall be amerced. If the disbursements of the guardian, being suitable to the estate and circumstances of the ward, shall exceed the profits of his estate, in any year, the balance, with the allowance of the court, may be debited in the account of a succeeding year; and a balance appearing on the contrary side may be put out to interest for the benefit of the ward, upon such securities as the court shall approve; or the guardian, if it remain in his hands, shall account for the interest, to be computed from the time his accounts were or ought to have been passed. If any surety for a guardian, by petition to the court before whom they were bound, setting forth, that he apprehends himself to be in danger of suffering thereby, shall pray that he may be relieved, the court, after a summons to answer the petition shall have been served upon the guardian, or a copy of such summons shall have been left at the place of his usual abode, shall order him to give counter security, or to deliver the ward’s estate into the hands of the surety or some other; in that case taking sufficient security, or may make such other order for relief of the petitioner as to them shall seem just. The estate of a guardian, not under a specific lien, shall after his death be liable for whatsoever may be due from him on account of his guardianship to his ward, before any other debt due from such guardian. Every orphan, who hath no estate or not sufficient for a maintenance out of the profits, shall by order of the court of the county in which he or she [shall have resided twelve months next preceeding be sent to the school of the hundred for three years; if he or she shall not before have been there, or if he or she shall have been there a part of the said term, then for so long a time as shall complete the said term; and, during attendance on the said school, shall be clothed and boarded so far as his or her own estate will not extend in the like manner as is provided by law for the support of other poor; after which he or she shall]2 be bound apprentice until the age of twenty one years if a boy; or of eighteen years, if a girl, to some master or mistress, who shall covenant to teach the apprentice some art, trade, or business, to be particularised in the indenture,3 and to pay to him or her three pounds and ten shillings at the expiration of the time. Any guardian may, with the approbation of that court in which his appointment shall be recorded, and not otherwise, bind his ward apprentice to such person, for learning such art, or trade, and with such covenants on the part of the master or mistress, as the said court shall direct; and any such apprentice, with the like approbation, or any apprentice bound by his father may with the approbation of the court of that county in which the father shall reside, after he shall be sixteen years of age, agree to serve until he shall be twenty-four years of age, and such agreement entered on record shall bind him.
The court of every county, city, or borough, shall at all times, receive the complaints of apprentices or hired servants, being citizens of any one of the confederating States of America, who reside within the jurisdiction of such court, against their masters or mistresses, alledging undeserved or immoderate correction, insufficient allowance of food, raiment, or lodging, or want of instruction, and may hear and determine such cases in a summary way, making such orders thereupon as in their judgment will relieve the party injured in future, or removing the apprentices and binding them to other masters or mistresses when it shall seem necessary: and may also in the same manner hear and determine complaints of masters or mistresses against their apprentices or hired servants, for desertion, without good cause, and may oblige the latter, for loss thereby occasioned, to make retribution by further services after expiration of the times for which they had been bound.4
Report description begins Report of the Committee of Revisors Appointed by the General Assembly of Virginia in MDCCLXXVI, Richmond, 1784 description ends , p. 43–4. MS (ViU); clerk’s copy. Text of Act as adopted is in Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends xii, 194–8.
Bill presented by Madison 31 Oct. 1785, passed by House 3 Dec., and amended by Senate and referred back to House 7 Dec. On 8 Dec. some of Senate amendments were accepted by House, others amended, and others rejected; the Senate agreed on 9 Dec. (JHD description begins Journal of the House of Delegates of the Commonwealth of Virginia (cited by session and date of publication) description ends , Oct. 1785, 1828 edn., p. 12–15, 64, 70, 76, 78, 133). This Bill fell within the portion of the work of revision allotted to Pendleton; see 1748 Act for the better management and security of orphans (Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends v, 449–54). But, as indicated in note 2 below, TJ must have inserted the provision for the elementary schooling of orphans in order to bring this part of the Bill into conformity with his Bill for the More General Diffusion of Knowledge. Except as noted below, the text of the Act as adopted agrees with that of the Bill as proposed by the Committee.
1. The words “upon oath” are not in the Act.
2. The words enclosed in square brackets (supplied) are not in the Act, having been deleted by amendment and the word “resides” substituted therefor. This proviso for educating orphans at public expense was probably written into the Bill by TJ.
3. The Act adds at this point: “as also reading and writing, and if a boy, common arithmetic, including the rule of three.” This amendment preserved the existing practice of placing responsibility for the elementary schooling of an apprentice upon the master, a necessary consequence of the rejection of public responsibility as indicated in note 2.
4. The Act as adopted includes the following additional sections not in the Bill: (1) the courts of hustings in the cities of Williamsburg and Richmond and borough of Norfolk and all other incorporated towns were to have the same power as given in this Act to county courts; (2) the Act was to be put in force 1 Jan. 1787.