Samuel Pepys’ Will
Samuel Pepys 1633-1703 was a lover of books and collected together a considerable Library, the Pepys Library, 3,000 volumes.He spent a lot of time in his retirement years “perfecting” the collection. He made his will 2 August 1701, followed by two codicils 12 May 1703 and 13 May 1703, providing for the Library. He died 26 May 1703.
The provision were (in paraphrased simplified modem language):
1. The books to be placed in order.
2. The collection of “stamps to be catalogued”
3. All sets to be completed, induding Clarendon’s History.
4. Gronovius Set of Green Antiquities to be added.
5. No additions.
6. More presses (bookcases) to be provided if needed.
7. Arms or crest or cypher to be stamped on every book.
8. Books to be placed accordingly to height.
9. Books numbered from lowest to highest.
10. Number stamped to be on the books.
11. Library to remain unalterable.
12. Any improvements or embellishments to be done at the discretion and convenience of nephew John Jackson.
The Library passed to his nephew John Jackson, a Magdalene man, for life (he died in 1723) and thereafter.
1. Library to be placed in Oxbridge, preferably Cambridge.
2. Private not public Library.
3. Trinity or Magdalen (sic).
4. Preferably Magdalen.
5. A fair room to be provided.
6. If Trinity…..
7. If Magdalen, the “new” (Pepys) building.
8. No additions.
9. Bibliotheca Pepysiana.
10. Control in the Master (who alone may borrow books, up to ten, and only to take to the Lodge).
11. The recipient college to enter into covenants for the performance of the foregoing articles.
12. Reciprocal check between Trinity and Magdalen, by way of annual visitation, and forfeiture to the other for breach of covenant.
The Library was moved in 1724 to Magdalene, Pepys’ old College, where it has remained ever since. It has been housed in the Pepys Building, which was started in the 1670’s, or possibly even much earlier, the 1620’s, having regard to the style of the rear, and completed in the 1690’s. Pepys contributed to the cost. The Library was housed in a gallery constructed from rooms chosen by Jackson.
Thus the Library went to Oxbridge Cambridge, Magdalene (the “e” was added in 1856). It is private, though the public are admitted. A fair room, in the Pepys Building, has been provided. There have been no additions. The title of the Library has been applied. There is no evidence of anyone other than the Master borrowing any of the books.
Following the publication of John Evelyn’s diary in 1818, the possibility of translating Pepys’ Diary, part of the Library, was first considered. Volume I was sent from Cambridge by the Master George Neville to Thomas Grenville book collector in London who sent it on to his brother Lord Grenville. John Smith made the first translation 1819-1822. Again in the 1870′ s the Diary was taken to London.
The books have been placed in order. Jackson discontinued the practice of stamping the books with special stamps or plates. Clarendon’s History, which was in the process of being published at Pepys’ death, was completed. The Gronovius Set was added. There have been no further additions. No more presses were needed. The arms or crest or cypher has not been stamped on every book. The books have been placed according to height, and numbered from lowest to highest. The number has been stamped on the books. The Library has remained unaltered. Jackson has long since been dead.
No covenants have ever been entered into. Trinity has never carried out a visitation. Trinity has always been fully aware of the situation.
The legal consequences
It could be argued that not having entered into covenants Magdalene is in breach of the conditions and the gift over to Trinity should take effect. However, in view of the history of the matter, a Judge would surely be reluctant to make a forfeiture order, or would surely be willing to grant relief against a forfeiture order. Although no covenants have been entered into, despite advice by Hugh Childers of counsel 18 and 24 October 1904 to enter into covenants, Magdalene appears at least substantially to have observed the spirit of the particulars or conditions laid down by Pepys. Trinity has never taken the point, has done nothing for two hundred years, and has not exercised the right of annual visitation, and accordingly would be met by defence laches, i.e. a substantial lapse of time coupled with the existence of circumstances which make it inequitable to enforce the claim. On principle the Judge would lean against a forfeiture. For the future, however, presumably Trinity could resume or commence the annual visitation, and if Trinity intimated a willingness to enter into the appropriate covenants, and discovered and could prove any relevant breach of the Pepys particulars by Magdalene, then Trinity could seek a forfeiture. If Trinity did so acquire the Library then the right to annual visitation would vest in Magdalene, a “see-saw” situation would arise. There is no further gift over. Magdalene is a charity, and must administer the gift of the Library on trust in accordance with the requirements of charity law, i.e. for educational and scholarly and public purposes. In theory any problems could always be resolved by an overriding Act of Parliament, but an Act of Parliament on such matters is not easily obtainable.