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ularies, in the year 803, he desired his deputies to nominate notaries in every place; and in another, in the year 805, he obliged every bishop, abbot, and count to have each a notary.1 At a later time, it became the sole prerogative of kings to appoint notaries; but, by degrees, the Pope of Rome assumed the same right.2

§ 6. Notaries in England were known to have exercised their powers before the Norman Conquest. During the reign of Edward the Confessor, whilst Reinbald was chancellor, some manors and lands were granted by the king to the Abbot of Westminster, by a charter, the concluding clause of which shows it to have been written and attested by a notary named Swardius: "Notarius, ad vicem Reinbaldi regiæ dignitatus cancellarii, hanc chartam scripsi et subscripsi," etc.3

Notaries, as public officers, are alluded to in the petition, in Norman French, of the House of Commons of the twenty-first year of the reign of Edward III, thus: "Et sur ce furent assignez per my Engleterre certeines Gentz de prendre Procuratours des Cardinalx, and d'autres Aliens, Subdelegatz and lour Notairs." 4

We find notaries named in the Act of Parliament, commonly known as the Statute of Provisors of the twenty-seventh Edward III, St. 1, c. 1, passed in 1353, and in the Act of the sixteenth Richard II, Chap. 5, Sec. 2, in 1392, commonly called the Statute of Præmunire. The Statutes of Præmunire had for their object the abolition of the papal power in England, so far as it pretended to appoint to ecclesiastical benefices without the king's consent. The statute declared certain pains and penal

1 "Ce fut Charlemagne qui, le premier, investit les notaires du pouvoir d'imprimer à leur actes le caractère de l'autorit publique. Il nomme dans ses capitulaires judices chartularii. Dans un de ces capitulaires de l'an 803, il veut que ses envoy ́s nomment dans chaque lieu des notaires; dans un autre de l'an 805, il oblige les évêques, les abbés, les comtes, d'avoir chacun un notaire." Merlin, Repertoire de Juris. Vol. 21, p. 317.

2 The Pope assumed the right to appoint to all faculties; and consequently, as a notary was included in such, he assumed the right of appointment. In England, he was deprived of this power by a statute in the reign of Henry VIII. See Edes v. Bishop of Oxford, Vaugh. 23.

3 4 Institutes, c. 8, p. 78.

4 Rot. Parl. 21 Edw. III, p. 172.

See Barrington on Statutes, p. 279.

ties against parties who should be concerned in any proceeding of this kind, in defiance of the king's authority, and declared that all "they, their notaries, procurators, abettors, fautors, and counsellors" should suffer certain penalties.

§ 7. Mentioned in reign of Henry V.-At a very early period in England, notaries were employed to attest or authenticate instruments of more than ordinary importance or solemnity; an instance of this is given in the ninth year of the reign of Henry V, when two notaries are mentioned in the Parliamentary Rolls of that year as attesting an instrument of importance relating to the affairs of Lucie, Countess of Kent: "Ensealee desoutz le seal d'armes du dite Countesse and desoutz le tesmoignance de deux notaries mettantz lour signes a mesme l'escript de le quele les paroles cy ensuent, etc.”1

In the reign of Henry VI, in the year 1430, there occurred a trial by battle, or single combat, one of the former barbarous modes of trial, before the king, in which one of the parties was John Upton, a notary of Feversham. The following is taken from an account, by Stow, of the combat:

"The foure and twentieth of January, a battel was done in Smithfield, within the lists, before the King, betweene two men of Feversham, in Kent, John Upton, notary, appelant, and John Downe, gentleman, defendant; John Upton put upon John Downe, that he and his compiers should imagine the King's death, the day of his coronation: when they had long fought the King tooke up the matter and forgave both parties." 2

§ 8. Acts of a solemn nature executed before notaries. -Apart from the ordinary duties of notaries, as attesting the execution of wills, contracts, bonds, and the like, there were sometimes executed before them acts of a high and solemn nature, in order to give them more of an impressive and authentic character. Thus it happened that they were called upon to officiate in drawing up and authenticating treaties. In the enumeration of the army of King Edward IV, designed for the invasion of France in 1475, we find there mentioned a doctor of laws and public notaries engaged to accompany the

14 Rot. Parl. 9 Henry V, p. 144.

2 Stow's Annals, p. 371

"Ma

troops, and the remuneration paid them is also stated. gistro Johanni Coke, Doctori Legum pro vadiis suis ad 2s. per diem, et pro vadies cujusdam Notarii Publici ad 12d. per diem." 1

That notaries were employed in foreign countries to protest or record dissents in respect of public or state measures, is proved by the well-known historical fact of Francis I, of France, having made a protest in 1526, before notaries at Madrid, declaring that his consent to the treaty of Madrid should be considered as an involuntary deed, and deemed null and void, as having been obtained from him during his captivity, consequent upon the battle of Pavia.2

In the "Merchant of Venice" we see how well established the custom was in Shakespeare's time to execute instruments of a solemn nature before a notary.

Shylock.

This kindness will I show:

Go with me to a notary, seal me there your single bond.

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Antonio. Yes, Shylock, I will seal unto this bond.

Shylock. Then meet me forthwith at the notary's.

And Massinger, writing in 1633, thus alludes in a satirical way to the duty and power of a notary:

"Besides, I know thou art

A public notary, and such stand in law

For a dozen witnesses; the deed being drawn, too,

By thee, my careful Marrall, and delivered

When thou wert present, will make good my title." 4

§ 9. Effect of Reformation as to office and duties.-In England, no material change was produced in the position and functions of notaries by the Reformation, except that the power of granting faculties, which hitherto belonged exclusively to the Pope, was assumed by King Henry VIII, and a Court of Faculty was created, which was attached to the Archbishop of Canterbury, to which Court the appointment of notaries was delegated.5

After this, it is apparent, the character and functions of a

111 Rymer's Fædera, 848.

2 Robertson's Charles V, Vol. 1, p. 388.

8 Act I, Scene 3.

4 By Sir Giles Overreach, in Act V of "A New Way to pay Old Debts." 5 Brooke, Office and Practice of a Notary, p. 6.

notary were no less considered, as appears from a provision respecting the recording and attesting of wills in certain Courts in the reign of James I, of which an account is thus given:

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"In the Canon of 1st James I, (1603) respecting wills proved in peculiar and inferior Courts, after reciting that deans, archdeacons, prebendaries, etc., etc., exercising ecclesiastical jurisdictions, having no known or certain registers, or public places to keep their records in, by reason of which many wills, upon the death or change of such persons and their private notaries,' miscarry and cannot be proved, it is therefore ordered that all such possessors of peculiar jurisdiction shall, once in every year, exhibit into the public registry of the bishop of the diocese, or of the dean and chapter under whose jurisdiction the peculiars are, every original testament by them proved in their several peculiar jurisdictions, or a true copy of every such testament,' examined, subscribed, and sealed, by the peculiar judge and his notary.'

1

In Scotland, before the Reformation, the duties of notaries were generally discharged by the clergy; but by the Act of 1584, they were precluded from exercising other callings than clerical duties, excepting the making of testaments; and even this was soon afterward removed and laymen were exclusively appointed to the office.2

1 Gibson, Codex Juris Ecclesiastici Anglicani, Vol. 1, Tit. 24, p. 470. 2 Brooke, Office and Practice of a Notary, p. 7.

CHAPTER II.

APPOINTMENT OF NOTARIES.

§ 10. Executive generally appoints.

§ 11.

§ 12.

In England, appointed by the "Court of Faculties."
Appointment in United States.

§ 13. Qualifications for appointment.

§14. Period for which appointed.

§ 15. Notaries in France.

§ 10. Executive generally appoints.-As a general rule, the executive power in every State is intrusted with the power and authority to appoint and commission notaries. We have already adverted to the practice in England before the Reformation, when the Pope exercised the right to appoint notaries, as included under his general power of appointing to certain faculties, as it was termed. In the American States, and throughout the Continent of Europe, the executive exercises the privilege of appointment.

§ 11. In England, notaries are still appointed by the "Court of Faculties," which is stated to be "a Court, although it holdeth no plea of controversie." There is a rule that, in order to practice as a notary in London, or within ten miles thereof, a person must have served for seven years as an apprentice under a qualified notary in actual practice, and if within three miles, he must also be a member of the Scriveners' Company. To practice at a greater distance than ten miles from London, a person must be admitted upon the production of a certificate of clerkship of five years to a notary, or an attorney and notary.2

The following is a form of a commission for a notary practicing out of London, taken from Brooke:

"By Divine Providence, Archbishop of Canterbury, Primate of all England, and Metropolitan, by authority of Parliament, lawfully empowered for the purposes herein written: To our

1 Brooke, Office and Practice of a Notary, p. 9. 26 and 7 Vict. Chap. 90.

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