Prerogative Court of Canterbury Wills, Vol. VII 1653-1656

British Record Society volume 54

Published 1925

Introduction to Original Volume

The eight years 1653-1660, of which this Calendar embodies the first four, form the most interesting and important period in the history of the Prerogative Court of Canterbury, because for those years the jurisdiction of the Prerogative Court of York, as well as the Diocesan and Archidiaconal Courts throughout the whole country was abolished and the Prerogative Court of Canterbury held sway over all England and Wales. The Registers therefore are swollen with Wills from all parts of the country, and their genealogical and topographical interest is correspondingly widespread.

In the years 1893-5 this Society issued the first volumes of its Calendars of the Prerogative Court Wills. In them were comprised the Wills for the period 1383 to 1558, and the first volume included an interesting Introduction by its able editor, Mr J Challenor C Smith. To this Introduction the reader is referred for much information about the Court and its Records. Further volumes of these Calendars followed, until in 1912 the Society had completed its printed indexes to the end of the year 1629.

Meanwhile Messrs George F and John Matthews had begun a series which they called "Year Books of Probate", commencing, somewhat arbitrarily, with the year 1630, issumg their first volume in 1902. Although this Series takes the Probate Act Books instead of the Registers as its basis, it covers much the same ground and answers much the same purpose as a Calendar compiled from the latter, and as Messrs Matthews had reached the year 1653 in their work, they were approached by this Society in 1913 to find whether, the Society having then caught up with the date at which their Series interposed, they would sell the stock of their volumes to the Society, bring that Series to an end, and assume the editorship of the Society's Calendars for the remainder of the Commonwealth period. After some negociations, Messrs Matthews expressed themselves as unwilling to agree to this arrangement, and the British Record Society accordingly decided to begin its next volume with the year 1653. This Calendar of Wills has been compiled from the Registered Copies of the Wills now preserved at Somerset House, and has been checked by the entries in the Probate Act Books and by the MS. Calendars.

In referring to this printed Calendar it should be borne in mind that the folio references are to Registers known as under for their respective years:

1653 "Brent"

1654 "Alchin"

1655 "Aylett"

1656 "Berkeley"

Square brackets denote that ail names or words enclosed by them are additional information or alternative readings taken from the Probate Act Books. In some cases whole entries are so enclosed, indicating that the Will is not to be found in the Registers. In those cases the reference number is to the page in the Probate Act Books, not to the folio in the Register. There are no Probate Act Books for the years 1653 and 1654, so in the present printed volume the above remarks apply only to certain references in 1655 or 1656. Round brackets (parentheses) indicate glosses added by the Editors, or further information derived from the body of the Will, or from the MS Calendars, or any sources other than the Probate Act Books.

References marked by an asterisk * are of Wills which are given in the Registers but are omitted from the MS Calendars, or which through clerical errors have been calendared under names so different as to be useless for purposes of reference, such as Prettejohn calendared as "Bettejohn", Pennell (of Balderton) calendared as "Balderton"; Henry St John, of Brimly, calendared as "John Brumley", Mary Bealey as "Henry" Bealey; Holland as "Bolland", Duckworth as "Buckworth"; and so on. Thus to a certain extent the references distinguished by square brackets or asterisks indicate information which this printed Calendar has for the first time made readily findable.

Welch names have presented many problems owing to the difficulty of drawing a rule which would apply consistently to all forms of them. In previous Calendars of this series those Welch names with the prefix "ap" have been calendared under that prefix, and therefore that method has been followed here, though it is not perhaps the most correct. In triple names, such as Edward ap David ap Evan, or Edward ap David Evan, or Edward David ap Evan, the rule has been followed to calendar the Will under the last name and cross-reference it under the middle one, both with and without the prefix; though perhaps after all these names are so little surnames in fact, in the sense of being fixed and hereditary, that the more logical method would have been to put each Welchman under his first or personal name only. The prefix "verch", meaning "daughter of", has been dealt with in the same manner.

It scarcely comes within the purpose of this Introduction to comment lengthily on the many items of interest in this Calendar. There is at least one example of a double Christian name, John George Trapps, in 1656. There are several Wills of wives, despite the absence of any "Married Woman's Property Act" , but an examination of the Wills themselves discloses that in almost every instance they were made in virtue of power reserved by agreement in the Marriage Settlement to dispose of some specified sum, while Mrs Sarah Smith (1654) expressly says that she makes the bequest "with the privity, good hkemge and consent" of her husband.

It was felt that a really exhaustive Index Locorum, identifying as far as possible all hamlets, chapelries, manors and farmsteads under their proper, parishes and arranged under their respective counties, would be work of real value to those engaged on parish histories or topographical studies. It has involved more time and labour and more appeals for assistance (always gladly given) to those with special local knowledge, than many will realise. It is not at once that one identifies such an exotic looking name as "Inskickcomsorerbu" as the honest Lancastrian Inskip-cum-Sowerby.

The Index of the Names of Ships may be useful to students of Naval and Merchantman history. The single entries have their interest, but there is fight or storm or tragedy behind the score of Wills left by the ship's company on the Torrington, the dozen or more from the Gloucester and the Swiftsure, and more than half as many from the Arms of Holland.

The Index of Trades and Conditions (kindly compiled by f Mr. Howard Guy Harrison, F S A) should be useful to students of Economics and those working on the histories of various Trades, Crafts and Professions. It contains several obsolete names. For instance, "hellier", the occupation of two West Country testators, is a Cornish word for "thatcher".

In dealing with the important period which is embraced by this and the succeeding volume of the Society's Calendars, it may be allowed to review at some length the changes in jurisdiction and practice which the Prerogative Court underwent at this time. The granting of probate and supervision and decision in matters testamentary had ever been ecclesiastical privileges, but the upheaval of the Great Rebellion, the confusion of the long Civil War, and the final usurpation of all power by an anti-clerical Parliament wrought great changes.

In 1643, William Meynck, DCL , judge of the Prerogative Court of Canterbury, joined the King at Oxford, and on the 8th of May issued a notice revoking the powers of his deputies. But as legal succession to property was difficult without proper probate, the Parliament bestirred itself to find some means replacing his jurisdiction. An ordinance accordingly was passed (4th Nov, 1644) appointing Sir Nathaniel Brent Master or Keeper of the Prerogative Court, with the same powers as those exercised by Meynck. A facsimile of the title-page of this Ordinance is given as a frontispiece to the present volume and, as the phrasing of the order and the nature of its provisions are of some interest, it may be permitted to quote it at some length.
"Whereas William Memcke, Doctor of the Lawes, late Commissary-generall, Master or Keeper of the Prerogative Court of Canterbury, wilfully, and contrary to his duty, hath absented himselfe from due attendance on the said Office, revoked all Surrogations and Deputations by him made in or neere London, Kent, Middlesex and other places within the power of the Parliament, wilfully and to the end that justice might not be administered in causes Ecclesiasticall in the said places in things to his jurisdiction belonging... the Lords and Commons in Parliament assembled, taking into their consideration the necessity of that service, declare and adjudge the said place void of the said Doctor Memcke and him from the execution of the said Office doe amove and have constituted and ordained. Sir Nathaniel Brent, knight. Doctor of the Lawes, by himself, his deputy and deputies, [to] use have, exercise and enjoy the office of Master or Keeper of the said Prerogative Court and that all Processes, probates of Testaments, lettres of Administration and other things whatsoever which shall passe the Seals of the said Court shall passe in the name and stile of the King, and with the Teste of the said Sir Nathaniel Brent. And that the said Sir Nathaniel Brent in the execution of his said Office shall have in the Seale of his said office the Kings Highnesse Aimes decently set, with these Characters engraved about it Sigillum Curae Prerogativae and shall use no other Seale for the said Office. And the said Lords and Commons doc further ordaine and declare that all probates of Wils and letters of Administration and other Acts that since the three and twentieth day of May which was in the yeere of our Lord God one thousand six hundred forty and three have been done, or that shall be done hereafter by the said William Merricke or any other person or persons as Master or Keeper of the said Office, other than by the said Sir Nathaniel Brent shall be voyd and of none effect to all intents, unlesse that the Admimstrators or Executors that claim thereby shall agame take new letters of Administration or make new Probate . before the end of Hillary Terme next in the yeere of our Lord God one thousand six hundred forty and foure"
It will be noticed with interest that Parliament, though ignoring ecclesiastical claims to jurisdiction, was careful at this time to preserve the King as the fount of authority, though they were in open rebellion against him.

It is difficult to trace exactly what happened to the other courts of probate in the country at this juncture. The number of Wills proved in them begins to fall off from about 1645, and after 1650 they are rare.

The offices of bishops and archbishops were abolished in 1646 and those of Deans, Deans and Chapters, Canons, Prebends, etc, in 1649, but it is certain that in most cases popular feeling and Parliamentary orders had curtailed the actual exercise of the powers of the clergy long before these dates. A question which still needs solution is how far the actual registrars and officials of the probate courts continued their work of proving Wills after the fall of those who had appointed them, and in whose name they earned out their duties. Another question is how far in the default of the local courts Wills were brought to the probate court of Canterbury before 1653. In 1655 there occurs a petition of Robert Fenwick, esq, to the Protector, stating that by ordinance of Parliament of 29th February, 1647-8, the registrarship of the ecclesiastical Courts of York and Durham (when they should be settled) would be bestowed on him.

The death of Sir Nathaniel Brent, 6th November, 1652, reopened the entire question as regards the Prerogative Court of Canterbury. It was realized how profitable the probate of wills might become to the Exchequer if conducted entirely as a civil matter and if the profits (over and above the fixed salaries paid to judges and clerks) were to accrue to the State Further, the fact that no Wills could be proved at the PCC was involving many people in the country in a considerable degree of inconvenience. For five months the PCC carried on practically no business then on 8th April, 1653, an Act was passed entitled "An Act for the probate of wills and granting of administrations in the late Provinces of York and Canterbury". This Act invested twenty Judges of Probate with the same authority formerly exercised by Sir Nathaniel Brent for the late Province of Canterbury, and gave them jurisdiction over both the Provinces of Canterbury and York. The judges were able to divide themselves into several places for the carrying out of their duties, provided that there was always a quorum of five. Four Commissioners were appointed to deal with the question of fees, and all profits above the salaries were to be used for the Navy. This Act was only to be in force till October ist, 1653. An Ordinance revived it December 24th, 1653, till April ist, 1654. It was again revived by Ordinance till further order on April 3rd, 1654. An Act of June 26th, 1657, confirmed the above Ordinance. In May, 1659, an Act was passed confirming the former Acts and continuing the Probate Courts till June 30th, 1659. In July it was again continued till October 10th, and finally an Act of Indemnity and Free Pardon, July 12th, 1659, protected Probates of Wills, April 19th, 1653, to June ist, 1659. Shortly after the Restoration William Meynck returned to the Prerogative Court and continued it on the old lines of pre-Commonwealth tunes.

The true significance of the Act of 1653 lies in three important matters. Firstly, probate became a question for civil, not ecclesiastical jurisdiction. The old penalty of excommunication for disobedience could scarcely be enforced, and more than once the Council of State found itself obliged to imprison by warrant those guilty of disobedience to the orders of the judges.

Secondly, the entire probate jurisdiction of the country was united into one single whole. The local courts do not as a rule continue to exist after 1653. There are a few cases of Wills being deposited at the former local registrars. There may occasionally be even a case of probate, but as a general rule the local courts, moribund before 1653, cease to exist after that date.

Thirdly, as a result of civil control of probate jurisdiction, the profits were devoted to national not private ends. They were not always turned over for the benefit of the Navy, but formed a useful source of revenue for occasional needs — such as the repair of Whitehall. Sometimes the profits were used to help hard cases where private persons had suffered from the loss of the revenue arising from the local courts. For instance, a certain Anne Prigeon, whose late father had obtained the registrarship at Lincoln for three lives, and who had formerly held an annuity of ten pounds from the profits, was allowed the same annuity from the profits of the central probate court

An interesting question arises as to the working of the courts. The Wills (especially those of 1653) tend to fall into groups of counties. Were they grouped thus by the clerks who registered the Wills, or were the Wills of the same county collected together and sent up to London for Probate? As it will be observed from the terms of the Act, the judges could sit in other places besides London, but there is no evidence that they did so. As time went on there were various suggestions for the improvement of the working of the courts which may throw light on this question. It will be seen in the suggestions appended (" Documents cited," etc) that a proposal was made that local registrars should be nominated to receive the Wills and send them up to London, and at the end a remark is appended that "There is little alteration here set down from the way that now is, or from the way formerly used". But it is difficult to believe that such a system was in full working order in 1653, and the question still requires solution.

August, 1925