A History of the Notary – England

Arms of the See of Canterbury, governing the Church of England, mother of the Anglican Communion. (Photo credit: Wikipedia)

In a previous note, I described the re-appearance of the notary as Europe emerged from the Dark Ages. This was on the continent but in England, the pace of development was slower. The Papal General Council in 1237 noted that there were then no notaries in England. Why was this?

Brooke’s Notary explained that the separate development of the common law in England, unrestrained by many aspects of Roman law, meant that notaries were not introduced until the 13^th and 14^th centuries. The first known notarial instrument produced in England, a marriage contract, dates from 1257. (Patrick Zutshi, Notaries Public In England In The Fourteenth And Fifteenth Centuries.) Early English notarial instruments usually dealt with foreign matters, such as relations with the papacy. Notarial instruments only became common after 1279 when John Pecham, Archbishop of Canterbury, brought with him to England an Italian notary. Pecham was also authorised to create three more notaries in England.

The principal work of English notaries was ecclesiastical and administrative. A  bishop would typically have a notary in his employ. Initially, most notaries were clerics. But with the clergy’s gradual withdrawal from secular affairs, more non-clerics were appointed.

As relative latecomers, the English notary’s scope of work was very much restricted. Zutshi, op. cit., observed:

“By the second half of the thirteenth century, when notaries public appear on the scene, the institutions of secular law and government in England were sufficiently developed, and indeed sufficiently elaborate and sophisticated, to allow only limited scope to the newcomers. ‘The English Common Law’, C.R. Cheney concisely observed of the notary public, ‘did not recognise him or his works’. Moreover, notaries were rarely employed in drawing up records of debt or contracts….The majority of English notarial instruments were in fact transcripts of judicial acts, charters and other documents.”

Or as explained by Gisela Shaw, Notaries in England and Wales:

“In England, notaries never attained the same prominence as they did in the continental European jurisdictions based on Roman law. As common law, with its preference for lay judges and oral testimony over trained lawyers and documentary evidence, increasingly replaced Roman law, the need for notaries began to diminish. The last major blow came in the 19^th century with the transfer to the common law courts of the bulk of the business of the last two courts to apply Roman law, ie. the Court of Admiralty and the ecclesiastical courts.”

Originally, notaries were appointed by papal authority and by the Holy Roman Emperor. However, in 1320, Edward II prohibited notaries appointed by imperial authority from exercising their office to stress England’s independence from the Holy Roman Empire. Thereafter, notaries were appointed by the Papal Legatee, and later, by the Archbishop of Canterbury but still under papal authority. In Scotland, James III enacted a statute in 1469 placing the power of control over the admission of notaries in the hands of the king.

England under Henry VIII witnessed the separation of the church in England from that in Rome. This resulted in a basic change in the appointing authority for notaries. Under the Ecclesiastical Licence Act of 1533, it was the English monarch who assumed the power of appointment. The King in turn delegated the power to head of the Church of England, the Archbishop of Canterbury. And the power was then further delegated to the Court of Faculties which remains until today the appointing authority in England.

Legislation over the years have further regulated the appointment of notaries. The Public Notaries Act 1801 provided for the appointment of general notaries in England and Wales. In more recent times, the Courts and Legal Services Act 1990 removed barriers to competition amongst notaries outside of London. Notaries could not practice anywhere outside London and were not limited to specific districts. Scrivener notaries, of which more on a later occasion, became subject to the same professional regulations as general notaries under the Access to Justice Act 1999.

 

A History of the Notary – Medieval Europe

At the notary (Photo credit: Wikipedia)

When the Western Roman Empire collapsed, what was the fate of the notary, a person closely identified with the administration of the empire? Brooke’s Notary says the notary “remained a figure of some importance in many parts of continental Europe throughout the Dark Ages.” Crucially, it appears after all the pillaging was done, even barbarians settle down to governing and the successors to the Romans, while having their own laws and customs, found it convenient to adopt some of Rome’s institutions. Thus, Roman civil law spread to northern Europe during the Middle Ages, and with its expansion, the notary retained a tenuous hold on life.

But if the notary survived, he did not flourish for almost nothing is heard of the notary in the two hundred or so years after the fall of Rome. It is only during the reign of Charlemagne, in the late 8^th century and the early 9^th century that we find an increase in the appointment of notaries. Charlemagne appointed judges who held assizes a few times a year. In 803, these judicial officers were empowered to appoint notaries to accompany them on their official travels.

Yet another few hundred years later, from the 12^th century, as the civil law grew in importance in the city-states of Italy, the notary became central to the administration of the law. Notaries were appointed by the Pope or the Holy Roman Emperor (or by their delegates, usually clergy). These appointments were recognized throughout Europe.

Bologna, whose university was founded in 1088, was a centre of learning and Brooke’s Notary points out: “The office of notary reached its apogee in the Italian city of Bologna in the twelfth century, its most distinguished scion being Rolandino Passeggeri generally known as Rolandino of Bologna, who died in 1300 AD, whose masterwork was the Summa Artis Notariae.”

Justinian had in 535 compiled the Corpus Juris Civilis which included the first laws concerning notaries. In Bologna, some six hundred years later, these laws were codified and adapted, and included in this codification was the manner in which notarial acts were to be performed.

Notaries have played a minor role in some historical events. For example, when Philip of France was threatened by the increasing influence and wealth of the Knights Templar, he had them arrested and tortured. Notaries recorded their forced confessions, and on Friday, 13 October 1307, Philip used these confessions to banish or execute the Templars. Ironically, the notaries were themselves members of the same Order. Coincidentally, the superstitions relating to Friday the 13^th originate from this affair. Christopher Columbus is said to have taken a notary with him on his voyage to the New World in the late 15^th century so that his discoveries could be formally recorded.

Since the civil law can be traced back to Roman times, the notary’s role remains an important and wide-ranging in civil law countries. Not so in common law countries where the notary’s commission is much more limited. The different route taken by notaries in common law jurisdictions, especially in England, will be discussed in the next article.

A History Of The Notary – Ancient Rome

Ancient Rome (Photo credit: Wikipedia)

The office of the notary public is commonly traced back to ancient Rome.  While this is going quite far back in time, it is possible the origins of the notary can be found even further in the past. In ancient civilizations, illiteracy was the norm and so the few who could read and write were valued members of society. One thinks of the scribe in ancient Egypt, for example, reproducing royal commands and sacred text in hieroglyphics. Nevertheless, the Latin origin of the word “notary” takes us on the road to Rome.

Brooke’s Notary (13^th ed.) has this to say:

 “The office has its origin in the civil institutions of ancient Rome. Public officials, called scribae, that is to say, scribes, rose in rank from being mere recorders of facts and judicial proceedings, copiers and transcribers to a learned profession prominent in private and public affairs. Some were permanent officials attached to the Senate and courts of law whose duties were to record public proceedings, transcribe state papers, supply magistrates with legal forms, and register the decrees and judgments of magistrates.”

Scribae were originally little more than literate clerks manning stalls in the market, but their importance and the complexity of their work grew over time. There was even a distinction between those handling financial transactions, “argentarii” and those dealing with other contracts, “tabelliones”.

 Marcus Tullius Tiro, born in the 1^st century BC as a slave but later adopted by Cicero as his son, is said to have developed a form of shorthand in which marks and signs, called “notae”, took the place of common words. This form of shorthand came to be called “Notae Tironinae”. Others adopted this convention. Plutarch said Cicero’s clerks were the first people to record speeches in shorthand. From this practice, the term “notarius” was born. In time, a notarius meant a registrar to a high government official, such as a governor.

One characteristic of Rome was its sophisticated legal system. Notaries, it can be assumed, played a vital role in the administration of that system throughout the empire. The importance of commerce to the empire, and with it, the need to document transactions, also influenced the development of notaries.

 The decline and the eventual collapse of the western Roman empire in the 5^th century AD also brought to an end the first chapter in the history of the notary. The re-emergence of the notary in the Middle Ages will be discussed in a later article.