The Notary Public, or just 'Notary' is not a familiar term in the English Legal System, and yet with the spread of International Commerce, and increasing foreign home ownership, the Notary is a person with whom more and more people are coming into contact. Just who or what are Notaries?
Well the story goes back a very long way. They originated as scribes - Latin 'SCRIBAE' - literate clerks who took notes or minutes of important events and decisions and made copies both of Public and Private documents. We have to remember that widespread literacy is only a relatively recent phenomenon. The role can be traced back certainly to pre-Biblical times for example the ancient Egyptians and Greeks certainly employed notaries - though there is no record of what they were called, and over time the importance and value of official record keeping became more and more important and societies formalised their rules and decisions.
In Ancient Rome, well before the time of Julius Caesar, these scribes set out their stalls in the Roman market place, and they were called TABELLIONS, probably from the TABULAE or tables or plates covered with wax which they used instead of paper.
A distinction grew up between those who attended to monetary transactions - called ARGENTARII, and those who recorded and dealt with all other contracts who were called TABELLIONES. There they conducted business for the important Romans who needed written records for any particular purpose.
Over time this practice developed into that of a learned profession . By reason of the Notary's technical knowledge they started to play an increasing part in both public and private affairs. Some became permanent officials attached to the Roman Senate and the Courts of Law - their duties being to record the relevant proceedings judgments and decrees. More generally the work of the ancient Roman Notary was concerned with the formal recording of private law matters, such as deeds, wills, transfers of property. They usually had slaves to do the laborious copying work Legal secretaries have a view that little has changed!
In the last century of the Republic, probably in the time of Cicero, a new system of shorthand writing was invented. This Roman Shorthand was called NOTAE TIRONINAE. This took its name from Cicero's secretary M Tullius Tiro, by whom it is said to have been invented, for the purpose of taking down his Master's speeches. Cicero was well known form his extended oratory.
What was this shorthand? Well those of you have studied shorthand will not be surprised to learn that it was a system of arbitrary marks or signs called NOTAE. Previously abbreviations of words had been used, much as un unskilled notetaker still does today. So you find for example APP for Appius; Coss for consules, or in writing one letter, usually the initial letter for the whole word eg PC for 'partes conscripti' or SC for 'senatus consultum'. It will not surprise you to learn that a person who adopted this new method was called a NOTARIUS, so we can date the origin of the term to around 100AD. Although originally applied to the shorthand writer over time the term NOTARIUS became reserved exclusively to the Registrars attached to the Courts of Provincial Governors, to the secretaries of emperors, and to the highest class of officials in the Roman Privy Council and the Imperial Chancery.
NOTARII was also the term given to shorthand writers who in the early days of the Christian Church reported the examinations and trials of the early Christian martyrs and confessors. They were employed to take down in writing the whole judicial process of the Roman judges against the martyrs, and to write out the circumstances of their examination and passion. The early notary recorded the questions put to the Martyrs and the answers they gave, indeed everything that passed during their trials and suffering. I leave it to your imagination as to what these entailed. These reports were called the Acts of the Martyrs and were the the original records preserved by the fledgling Christian Church. By this means accounts of the martyrdom of St Andrew, St Polycarp, and others were preserved, and the earliest collection of the lives of the SAINTS was derived from the same source. The first institution of these NOTARII at Rome was under the Emperor Fabian. Notaries were also employed to take down the discourse of eloquent preachers. By this means many of St Chrystostom's sermons were preserved.
To jump slightly jumped ahead of our story you can already see that Notaries were intimately bound up with Ecclesiastical matters from the earliest of times. You will not be surprised to learn that the authority to practise as a Notary today in this Country is issued by the Faculty Office of the Archbishop of Canterbury
What happened next?
Back to the Roman market. The records produced by these early notaries were divided into two sorts. Public instruments called INSTRUMENTA PUBLICAE CONFECTA which commanded a degree of authenticity and purely private documents which did not. This distinction survives to the present day and I shall look at it when we come to talk about the work of the modern Notary.
You all know that the Roman Empire collapsed. But this did not quite extinguish the office of Notary. Obviously the invaders from the north who demolished the Old Roman Empire introduced their own laws and customs, but they frequently found it convenient to retain the customs and laws and institutions of Ancient Rome. If you have read Machievelli's The Prince you will know that he recommended this practice when taking over Princedoms. In the days of the EEC perhaps we should be more tolerant of local legal differences? But I digress.
So emerged the Teutonic Court, assisted by the Bishop of the Diocese to take the place of the Roman Governor in the administration of Justice. Courts were held in principal cities of Europe and were known as The Assize Court , and we find attached to those early courts (and of course we are here still speaking here of continental Europe, GB was pretty barbarous at this time) we find reference to ' NOTARIES OF THE COUNT'. 'Count' here being the local ruler in this era of princedoms.
By the beginning of the 9th century - the Carolingen period - legal matters were in a sorry state, complaints of injustice were frequently made and the Emperor Charlemagne, in order to remedy the situation, appointed itinerant justices or royal commissioners - called MISSA REGII - to hold the Assizes four times a year. In AD 803 these commissioners were directed by the Emperor to appoint notaries to accompany them on their circuits and to see that 'all bishops, abbots and counts were provided with notaries.' The noatries were known as Royal Notaries - and to this day the newly appointed Notary must swear allegiance to the Queen.
Moving on to the 12th Century A.D. the Emperors of Germany - as successors to Agustus - laid claims to the privileges of the Roman Emperors and thenceforwrd Notaries were called Imperial and Palatine Notaries . It was towards the end of this period that the Popes in Rome, who had previously always appointed notaries within their own territories decided - or more probably just assumed the right - to appoint Notaries outside their territories. Thus the concept of the Notary as a Papal appointee emerged. There was no territorial limitation on the Notary's jurisdiction. William Durand in his SPECULUM of approximately 1271 states:
'A notary public appointed by the Emperor or the Pope or by someone to whom they have granted this special privilege, may perform his office and draw up instruments anywhere, - EVEN IN FRANCE OR ENGLAND OR SPAIN'. (Clearly the writer regarded these northern European places as uncivilized and completely beyond the pail).
Thus here we have the beginnings of the present day Notary. A publicly appointed official, whose Acts and Records are acknowledged internationally.
The main requirement of a Notary is that the Acts and Records have to have a high degree of authenticity. There must be no doubt over the document, or the person executing it, and once attested by a Notary it is recognized internationally and given the force of a Court judgment.
A codification of the Latin laws was drawn up in Bologna which placed great emphasis on the legal and technical qualifications of the Notary and drew up formularies to facilitate the production of notarial acts in correct form of law. It is to these mediaeval jurists that the status and accepted acts of the modern notary are attributed.
The other emphasis on Notarial acts was the importance of the Deed. In Roman law countries only Court judgments carried any special force, but, as notaries ceased to be dependent on Judicial authorities more and more force was given to their ‘Authentic Acts' as they are called. It was Louis XIV of France who abolished the last vestiges of the ancient dependence on judicial authority and granted to each notary a seal with the Royal Arms. The modern notary must still employ his seal, but that is now for him to design personally and to guard carefully.
England of course did its own thing. England had 'customary law' rather than Roman law, and the function of Notary was not embedded in the local law. The Romanizing effect of the Christian missions in the early Middle Ages brought literacy to the Clerical classes, but, writing was primarily for adding solemnity rather than to produce an unquestionable written record. Even when documentary evidence was required for the conveyance of land, it was never a requirement in Britain (unlike the Continent) that a Notary be used.
By the end of the 13th century Chenet reports that ‘every villain could have a seal from which forgery proliferated'. However undaunted up to A.D. 1279 Notaries arrived sporadically from the Continent. The significance of this date is that it is the year in which the Pope authorized the Archbishop of Canterbury to appoint notaries. This practice continued until the Ecclesiastical Licences Act of 1533. Otherwise known as PETERS PENCE AND DISPENSATIONS which, as a result of the Reformation, transferred legal authority concerning the affairs of the Protestant Church in England from Rome to Canterbury. Which is where it remains to this day.
From 1533 to 1801 members of the English notariat were appointed without foreign intervention or even Parliamentary intervention. They remain a distinct and separate legal profession, as by and large they still do today. But Parliament loves to legislate (what else is it for?) So in 1801 it passed the Public Notaries Act of 1801 -and the first Statutory regulation of the Notarial profession. The Act confirmed that it was the Master of Faculties of the Court of The Archbishop of Canterbury who should appoint and control notaries, whilst in the City of London exclusive right was given to the Scrivener's Company to administer the profession within the City.
There was little further intervention by Parliament until the Courts and Legal Services Act of 1990 indirectly introduced more stringent qualifications and abolished the distinction between District and General Notaries.
There are thus two kinds of notary practising in England today - Scrivener Notaries to be found in London (generally with particular language skills and knowledge of foreign laws) and general Notaries in the remainder of the Country who assist members of the public with their transactions involving the law of other jurisdictions.
Tom Halliwell
May 2000.