§ 6. Notaries in England. § 7. Mentioned in reign of Henry V. § 8. Acts of a solemn nature executed before notaries. § 1. Origin remote.-Notaries as professional officers seem to have existed from a period of remote antiquity; though their office and duties were not similar to those of the present day. It is easy to conceive that, at a time when but few were capable of putting their agreements in writing, a demand should have existed for a class of officers who might be able to embody and attest in a written instrument the terms of a contract. It is for this reason we so frequently meet with a class of officers of this kind in all historical writings. Under various names we find them described in ancient history; but the generic word Scribae seems to be applicable to all such persons.1 A French legal writer thus speaks of such public officers: "Ils furent nommés Scribæ, titre commun à tous ceux qui savent écrire; Cursores, ou Logographi, parcequ'ils écrivaient aussi vite que la parole; Notarii, parcequ'ils écrivaient par notes; Tabularii, ou Tabelliones, parcequ'ils écrivaient sur des tablettes; Argentarii, pour designer ceux qui ne recevaient les contrats que pour quelques négociations d'argent, telles que prêt, dépôt.” 2 § 2. Under Roman law.—A writer on Roman law asserts that the word Scriba was applied in ancient times to the clerk 1 A notary was anciently a scribe that only took notes or minutes, and made short draughts of writings, and other instruments, both public and private. Burn, Eccles. Law. Vol. 3, p. 1. 2 Merlin, Repertoire de Juris. Vol. 21, p. 317. NOTARIES-1. [1] of the Court, in contradistinction to the Exceptor, who was em ployed by private persons. He says further that "the terms Notarius and Actuarius1 designated a peculiar sort of employee; but in the fourth and fifth centuries these terms changed, and the word Exceptor applied to every chancery, Notarius and Tribunus being reserved for the imperial chancery alone—hence Tabellio came to signify what Notarius originally implied, namely, such persons as prepared contracts, wills, and the like, without a public sanction, in the beginning of the sixteenth century."2 It is under the term tabellio we find the officer described in Roman law who most nearly corresponds to our modern notary. These tabelliones assumed a position of great importance in Roman law as public officers. § 3. Functions of the tabelliones.-At first, these officers were occupied in a professional capacity, and had only a public character in so far as they offered their services to the public at large in drawing up instruments of agreement, legal documents, and papers to be presented to the Courts of Law or other authorities of State. They established themselves in the most frequented and public resorts, where the public might more easily obtain their services in this capacity; and even at the present day such officers are found in Italian cities, offering their services in a similar capacity. In Rome, their offices were found around the Agora and Forum, and hence the name under which they are sometimes. designated, as tabelliones forenses.* Their number and importance increased in such a degree that the State began to take a recognition of them, and to place them under a certain sort of supervision and regulation. They 1 Il existait encore une autre espèce d'officiers appel ́s Actuarii. Chaque gouverneur de province avait auprès de lui un de ces derniers officiers pour recevoir en registrer et sceller les acts, tels que les émancipations, adoptions, manumissions, et testamens." Merlin, Repertoire de Juris. Vol. 21, p. 318. 2 Colquhoun, Roman Law, Sec. 86. 8 They were called tabellio, probably from the tabulæ, or tables or plates covered with wax, used by them instead of paper, See Corpus Juris Civilis, Novell. 23; Du Cange, Glossarium ad Scriptores mediæ et infimæ Latin tatus, title Notarii and Tabellio. 4 Colquhoun, Roman Law, Sec. 2349, Novell. 44. formed themselves into a sort of guild or company, under a presiding officer called a primicerius. And it appears from a "Constitution" of Diocletian that a tariff of fees was established for them. § 4. Their acts were not accorded full public authenticity in the Roman law; it was still necessary that witnesses should be adduced to fully authenticate their notarial acts. But these acts commanded a certain degree of weight and public authenticity. There were three species of instruments to which the civil law attributed different degrees of credit. There were those specially designated public instruments, such as were deposited in the public archives set apart for that purposeQuce in publico deponuntur in archio aut Grammatophylacio;1 and these instruments proved themselves-no witnesses were necessary to establish them as evidence. The writings which were accorded the next degree of credit, as evidence, were those taken by a notary in the presence of two witnesses. They were called instrumenta, or documenta publice celebrata, publice confecta, or scripturæ forenses, because they were taken by notaries established about the Forum. The signature of the notary did not confer on them authority, and they were not given the credit of public instruments, for they did not prove themselves. Testimonium publicum non habebant. If the writing of the party were objected to, the notary must be called, and in case of his death, the attesting witnesses.2 Such writings as were made without the intervention of a notary-qua non habebant supplementum Tabellionis—were required to be signed by the parties in the presence of three witnesses of credibility, and who were acquainted with the parties.3 1 Dig. Lib. 48, Tit. 19, 1, 9, Sec. 6. 2 Burge, Colonial Law, Vol. 2, p. 700. The rule of the canon law was that one notary was equivalent to the testimony of two witnesses. Burn, Eccles. Law, Vol. 3, p. 2. In the Civil Law, by the 73d Novel of Justinian, the mode of authenticating instruments is carefully pointed out, and the functions of the tabelliones in this respect provided for. In Cap. 2, it is provided: Sed et si quis aut mutui instrumentum, aut alterius cujuspiam faciat, et noluerit hoc in publico confeteri, quod et in deposito, de finivimus, non ex ipso videatur credibile quod scributur super mutuo documen § 5. When acts obtained public recognition.-Under the Roman law, it had been the custom for a judge, or public functionary, to have close by him a sort of secretary, generally denominated in later times a cancellarius, whence our word "chancellor" is derived. Such officers were also attached to the bishops, after Christianity was established in the empire. These officers discharged important functions in drawing up agreements, documents, and especially wills, which were very frequently drawn up before the bishops by their notaries, who, for a long period, on the continent, (as well as formerly in Scotland) had committed to them, as a peculiar and responsible part of their functions, the attestation of wills. But, after the decadence of the secular jurisdiction of the bishops, and the limitation of their powers, the notary began to do on his own behalf what he formerly did as an attached ministerial officer; and before him were executed and attested the most formal and solemn documents, such as wills, bonds, and important contracts. It was in the time of Charlemagne that the acts of notaries were first invested with public authority. In one of his capit tum, nisi etiam testium habeat præsentium fide dignorum non minus trium; ut sine veniat et proprius subscriptionibus attestentur: sive alii quidam testificentur, quia præsentibus eis confectum est documentum; fidem causa ex utroque percipiat, etiam literatum examinatione penitus non repulsa, sed sola non sufficiente augmento autem testium confirmanda. In Cap. 5, it is pointed out how the tabelliones shall cause instruments to be carefully drawn up: Sed et si instrumenta publice confecta suit: licet tabellionum habeant supplementum, adjiciatur et eis antequam compleantur (sicut dictum est) testuim ex scripto præsentia. 1There is a remarkable instance given, in Stair's Decisions of the Scotch Court of Sessions, of the punishment of two notaries for improperly attesting a will. The case is reported as Stuart contra Smith, Nov. 20th, 1680, at page 804, in the following quaint style: "It was further alledged that the defunct made a testament, and named Wardlaw executor and universal legatur to her, upon his having maintained her many years. It being answered that the testament being subscribed by two nottars is false, the defunct never having given command to subscribe it, nor heard it read, but that a blank paper was subscribed by the nottars, and was filled up, ex post facto, after the defunct's death, which being found relevant, and the nottars and witnesses being examined, they did depose that the nottars subscribed a blank paper, and that the defunct was not sensible, nor able to speak, but that her hand was lifted by another to touch the pen, and that the testament was not filled up till some days after her death. The Lords found, not only the testament null, as being blank, but false and without warrand, and deposed both the nottars, and gave warrand to the sheriff to send both their persons to Edinburgh, to be set upon the cock-stool, with a paper upon their brows." |