Monday 23 July 1660

This morning Mr. Barlow comes to me, and he and I went forth to a scrivener in Fenchurch Street, whom we found sick of the gout in bed, and signed and sealed our agreement before him.

He urged to have these words (in consideration whereof) to be interlined, which I granted, though against my will.

Met this morning at the office, and afterwards Mr. Barlow by appointment came and dined with me, and both of us very pleasant and pleased. After dinner to my Lord, who took me to Secretary Nicholas, and there before him and Secretary Morris, my Lord and I upon our knees together took our oaths of Allegiance and Supremacy; and the Oath of the Privy Seal, of which I was much glad, though I am not likely to get anything by it at present; but I do desire it, for fear of a turn- out of our office. That done and my Lord gone from me, I went with Mr. Cooling and his brother, and Sam Hartlibb, little Jennings and some others to the King’s Head Tavern at Charing Cross, where after drinking I took boat and so home, where we supped merrily among ourselves (our little boy proving a droll) and so after prayers to bed.

This day my Lord had heard that Mr. Barnwell was dead, but it is not so yet, though he be very ill.

I was troubled all this day with Mr. Cooke, being willing to do him good, but my mind is so taken up with my own business that I cannot.

28 Annotations

upper_left_hand_corner   Link to this

"I was troubled all this day with Mr. Cooke"
Am I forgetting something? Last I recall, Mr. Cooke was at sea. What is the business Same means to do for him?

Bullus Hutton   Link to this

".. took our oaths..I am not likely to get anything by it at present; but I do desire it, for fear of a turn- out of our office." Phew, this is scary stuff, implying he has become some sort of a "made man" in the upper echelons of power, who can no longer be got rid of easily. Or is it just like getting tenure in a faculty?
It's going to take some vincent, Glyn or Language Hat to sort out the significance of " oaths of Allegiance and Supremacy and the Oath of the Privy Seal" ..
"Bated breath" can only describe the anticipation..

john lauer   Link to this

"He urged to have these words ..."
must mean "He wanted the words 'in consideration whereof' to be inserted ...". The parentheses, but no quotes, confused me awhile.

chip   Link to this

Thinking of Sam on his knees uttering his oath, thinking he is not gaining a shilling by the act, is comical. And then later saying his prayers (and probably not gaining anything by that either). I too wonder what 'in consideration whereof' referred to and why Pepys objects. Any chance of this document surviving I imagine is slim.

Paul Brewster   Link to this

He urged to have these words (in Consideracion whereof)
This passage has several textual issues worth noting.

-- According to L&M, the word "these" represents a substitution that SP has made for what appears to be the word, "this". Good catch, SP.

-- The parentheses are probably SP's own. Per L&M they are among the few punctuation marks found in the shorthand and they retain them.

— The phrase within the parentheses is written in italics in L&M. As noted previously on this site, L&M says that the use of "italics is all editorial, but (in e.g. headings to entries) often follow indications given in the MS. (by e.g. the use of larger writing)."

— The L&M spells the word, consideration, as shown above. This may hint at a section written longhand.

Based on the above I can only surmise that he took great trouble over the insertion of these words in the agreement and then continued the debate in his diary. For the life of me I too can't figure out why. The phrase would seem to be just a normal example of legalese.

Pauline   Link to this

"...(in consideration whereof) to be interlined..."
Two days ago Sam met with Barlow with a form of how their agreement would be stated. Barlow "liked it very well." With this approval, Sam took it to be engrossed in duplicate. Now with the final copies ready to sign, the scrivener wants to get in the act and insert this phrase, messing up the copy a bit and making no difference. I'm with Sam, I'd be impatient with it too.

I take the scrivener's role to be like a notary public, witnessing the signatures.

Pauline   Link to this

If "he" = Barlow
All the more reason for Sam to be against it. In either case he shows the good sense to cede a small issue to the man of lesser power. But he and Barlow do go on to be "very pleasant and pleased."

Mary   Link to this

...in consideration whereof..
could,perhaps, be significant if it ties Sam's payments to a specific condition rather than leaving them on a more good-will type of basis, which he might eventually be able to slide out of. Or am I just being cynical? Any lawyers out there who would care to comment?

Alex Workman   Link to this

"in consideration whereof..
As a law student, the word consideration has an especial meaning - it is one of the parts that make up a legally binding contract. Broadly speaking it is that part of a contract that is the promise of performance. Having it in a document would possibly get that document considered more legally binding as a contract and this might be why Sam is rather displeased - he might have been trying to get out of it as soon as possible and this restricts the ability to do that. This is my view anyway - I await correction by more seansoned lawyers.

Chris Starr   Link to this

The Oaths of Allegiance and Supremacy where a device to prevent Catholics from becoming civil servants by several means including takeing scarement according to the Church of England, denying the physical change of wine and bread into the blood and body of Christ and various other clauses to prevent any possible way for a Catholic to cheat by taking Catholic scarement after the oath.

David A. Smith   Link to this

"in consideration whereof"
Very simply, Barlow wants the record to show that Sam's payment is a contract, not charity, and thus enforceable in the event that Sam decides to repudiate it. Sam, in turn, is probably (a) uncomfortable because the phrase implies that Barlow had standing (which he probably did but which Sam wishes he does not have to acknowledge), and (b) nettled that, having done Barlow a good turn (as he sees it), Barlow now comes back a couple of days later and isn't quite as grateful as he first made out. (In other words, maybe Barlow was a little shrewd in his supplication ....)

This contretemps is classic morning-after contractual minutiae and yet another example of how (x) human motivation never changes, and (y) why it's so rewarding and so much fun to read the diary closely -- everyone in it comes brilliantly to life.

brad w   Link to this

".. took our oaths..I am not likely to get anything by it at present; but I do desire it, for fear of a turn- out of our office." Phew, this is scary stuff, implying he has become some sort of a "made man" in the upper echelons of power, who can no longer be got rid of easily.

I don’t know, I read that as a sort of Plan B in case the tide changes. Sam’s always so worried about losing this office. So maybe he’s thinking that if “a turn-out of office happens,” meaning if he and Sandwich get kicked out in some politcal sea-change (pun intended), he’ll still have another duty (Privy Seal) which could be used to make some money. Or do I misunderstand the Oath of the Privy Seal?

Brian McMullen   Link to this

The annotation for the Privy Seal indicates that the 'holder' of the seal is know as Lord Privy Seal. I take it that the Earl is the person given the power of the seal. To me SP is now very comfortable that his connection with the Earl can withstand the test of time (or loss of office).

Paul Brewster   Link to this

Just a note
The Earl of Sandwich is not the Lord Privy Seal but is instead one of the four clerks in the Pivy Seal Office.
See the entry for E Montagu on the page:
http://www.history.ac.uk/office/privyseal.html

Brian McMullen   Link to this

Paul, thank you for the clarification and thank you for the link (lots of useful information). I think I found the four 'clerks' you mentioned and they are (in alphabetical order) Hartgill Baron, John Castle, Edward Montagu, and Williams Watkins. There appeared to be 'some discussion' as to who was a 'clerk' at the time of restoration. The four 'clerks' probably had to 'negotitate' with the clerks from Charles I reign. I found the information on another link at the same site:

http://www.history.ac.uk/office/privyseal_alpha...

martha wishart   Link to this

It is not clear to me whether Barlow has asked for the words "in consideration whereof" to be inserted, or whether the scrivener has recommended it. "Consideration" is a legal term meaning a thing of value given in return for a promise. Consideration is required to make a contract binding. Here, Barlow has given up his reversionary interest in Sam's office in return for the promise to pay the annuity.

Brian McMullen   Link to this

I believe that Barlow has asked for the words to be inserted. If you read the first sentence the scrivener has acted as a notary, job done. SP, in the second sentence, then fulminates a bit about having to add words to the document he thought completed and paid to have copied (not by the scrivener). This appears to be last minute hesitation on Barlow's part. Just trying to make extra sure that he will get what SP has promised.

Nix   Link to this

The scrivener's role --

was probably a bit more than just copying down the parties' words. English law was very form-bound, which is why a whole class of form experts arose. "In consideration whereof" would fall under the class of technical requirements, compliance with which was one of the reasons you hired a scrivener.

Pauline   Link to this

Who "he"?
We might not be able to say for sure which is meant, Barlow or the scrivener. Unless we can determine that a scrivener did not have the power to suggest added wording to something he was witnessing.

And we don't know how important the interlined words were in the legal context of that time. I was seeing it as one incident in the early history of burgeoning legalese -- a phrase that some are beginning to insist on and that will become standard.

I think Sam is very accepting of the fact that he must provide this annuity to Barlow. For example, it is the other side of the coin by which his Privy Seal position gives him security -- you get the position and it comes with privileges and built-in protection regardless of what happens. He was pleased to find that Barlow wasn't interested in retaking the Clerk of Acts position and that he is old and not likely to be around to collect the annuity for very many years. But he respects Barlow's right to the annuity.

And David A. Smith is right on: "classic morning-after contractual minutiae."

vincent   Link to this

'HE" If it was not for Barlow then there would be no need to get the document adjusted by the correct legal wording, so my vote is he = Barlow. I'm sure the Scrivener could and would have a say in the where and how to make it legal, based on his position and experience.
SP Likes to watch his pennies( he has shown that he is very careful in the distribution of his funds).

Roger Miller   Link to this

Which boy?

Isn't it more likely that the boy is not Will Hewer but the Will mentioned for the first time on the 30th June?

http://www.pepysdiary.com/encyclopedia/1036/

Caroline   Link to this

I really enjoy reading the diary and the comments, but people should take more care to spell things correctly as often the meaning is unclear, as in this segment:
The Oaths of Allegiance and Supremacy where a device to prevent Catholics from becoming civil servants by several means including takeing scarement according to the Church of England, denying the physical change of wine and bread into the blood and body of Christ and various other clauses to prevent any possible way for a Catholic to cheat by taking Catholic scarement after the oath.

Pauline   Link to this

Ah, Caroline
People who type with ease and haven't succumbed to spell-checker reliance over the computer years do turn out nicer copy, but a message place such as this must welcome thumb typers and creative spellers as well.

vincent   Link to this

a) The Oath of allegiance was to eliminate those who did not agree with The Kings version of Religion: Some did find it hard to change, but did change their thinking. But others were definely on the the wrong side of the royal opinion:The Quakers for one, along many other sects of protestant thinking , beside the Roman Catholics.
What is Scarement? ( do you mean the action of blasting pedantic schoolmasters?) (from websters)
My mispellings are 1) I am dysletic sometimes , 2 )I cannot make up my mind if its a(N) english word or henglish word or may its from my ilgooten youth;or I am too lazy too look it up in the dictionary. I apologise if my diction is poor.

language hat   Link to this

I don't think anybody has trouble figuring out what you're saying, and it's always worth listening to!

Pauline   Link to this

Gee, Vincent
Here I thought you were typing with your thumbs. I'm with language hat, always worth reading.

I do hope my above message isnt' misread. "Must" as in 'it is by far the most rewarding and reasonable', not as in 'have to'.

And with that, a sigh of relief -- I have forgotten how to spell and want to skip all this dictionary grabbing and just post ad hastium.

Dick Wilson   Link to this

A promise unsupported by consideration is unenforceable at common law, unless under seal, though it might be enforceable in chancery if detrimental reliance can be shown. Who says lawyering ain't fun?

Chris Squire UK   Link to this

' . . b. in consideration of: in view of, upon taking into account, in respect of, in return for . .
1540 Act 32 Hen. VIII c. 42 Wherefore, in consideration of the premisses, be it enacted, etc.
1653 H. Cogan tr. F. M. Pinto Voy. & Adventures lxxvi. 310 Who in consideration of ten duckets that we gave them, fell to diving into the sea.
1817 J. Mill Hist. Brit. India II. iv. ix. 286 In consideration of this benefit they should pay into the exchequer 400,000 l. every year . . ' [OED]

'in return for' is the important meaning here.

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