The Roman Empire to the Middle Ages
The history of the office of notary public is closely related to the history of the Roman Empire and the early Catholic Church. The Romans developed the office and used it in the lands they dominated. The Church established its own system of notaries and, because of its position in civil affairs following the decline of the Roman Empire, influenced the development of the office.
The word “notary” comes from the Latin word “nota,” a system of shorthand developed by M. Tullius Tiro (103-3 B.C.), the clerk of Cicero. Tiro used nota to take down Cicero’s speeches. People employed to receive instructions for the drafting of agreements, conveyances, and other types of instruments adopted this method of writing, and the term “notarius” was used to describe them.
These notarii became semi-officials during the early days of the Roman Empire. Their number grew and their influence increased as the empire expanded. They were also known as scriba, cursor, tabularius, tabellio, exceptor, acuarius, and notarius, depending on the time in which they lived and the duties that they performed. Over time, they formed themselves into a sort of guild or company, and the government undertook a limited amount of supervision and regulation, such as fixing the fees they could charge.
Notarii were officers of the Catholic Church from a very early time. Clement, the fourth Pope, appointed seven men who were stationed in various parts of Rome to describe the acts of any martyrs in their appointed area. Later, the Church claimed international jurisdiction and declared that papal notaries could act in any country.
The Roman Empire reached its zenith during the period 96-180 A.D., during which time it united 45 provinces containing more than 75 million people. Their empire encompassed Spain, Britain, Central Europe, and all lands bordering the Mediterranean Sea. The principal Roman influences on these conquered lands were their systems of law and government. The value of the office of the notary was apparent, and the use of the office spread throughout the empire.
The Roman Empire started to decline near the end of the second century, and by the year 500, the collapse was complete. During the turmoil that followed, the Pope took the place of the Roman Emperors, and the Church took over many functions the government had neglected.
During the eighth century, the Holy Roman Empire was created in Central Europe. In the year 803, the Emperor Charlemagne directed his deputies to nominate notaries throughout the empire, and in 805, he required all bishops, abbots, and counts to have their own notaries. The emperor invested the acts of these notaries with public authority. Charlemagne and the German emperors who followed him claimed all the authority that had belonged to the Roman emperors, including the authority to appoint notaries. The emperors declared that these imperial notaries could exercise their duties in any country ever subjected to the Roman Empire, even if the country was independent.
The Notary in England
The office of the notary public did not attain the position of importance in England that it did in most of Europe. The reasons can be found in the economic conditions and the state of the law during the Middle Ages and the Reformation that followed.
England had notaries during the Middle Ages. Documentary evidence shows notaries were practicing there during the reign of Edward the Confessor (1043-1066 A.D.), and they were well known during the reign of Edward II (1307-27 A.D.). Notaries were needed for the ecclesiastical courts and commercial transactions involving foreign countries. The imperial and papal notaries who filled these needs sometimes irritated the English kings. For example, in 1320 Edward II issued two writs prohibiting imperial notaries from practicing in England and denying credit to their work.
The law did not require deeds and other instruments in common use to be prepared or attested by professional experts. Since most of the commerce was in foreign hands, the medieval common law did not need or recognize notaries. During the fifteenth and sixteenth centuries, England began to handle much of its foreign commerce, so notaries were required to draw up different kinds of instruments. However, the notarial system as it was known under the Romans never really caught on.
The Reformation began in England with King Henry VIII’s revolt against the Pope. Henry VIII, a devout Catholic, had a dispute with the Pope regarding his marital status. As a result, he demanded that Parliament enact a law giving him the right to appoint bishops in England without the Pope’s permission. He immediately installed a puppet Archbishop of Canterbury who solved Henry’s problem by declaring his marriage to Anne Boleyn valid. The Pope claimed Henry was still married to Catherine of Aragon and excommunicated him. Henry retaliated in 1534 by having Parliament enact a law making him the head of the Church of England and giving him the exclusive right to make appointments, including appointing notaries. Parliament created a Court of Faculties, attached to the Archbishop of Canterbury and empowered to delegate notaries.
The Reformation reduced the ecclesiastical law to a subordinate position. During the seventeenth century, common law became the supreme body of law in England, so the office of notary public, an official of the ecclesiastical and civil law, became less important. In just a little over a hundred years after Henry VIII severed the ties with Rome, some 60,000 settlers left England to find a new life in the New World. Twenty thousand settled in New England, and the rest in Maryland, Virginia, and Bermuda.
The settlers brought with them the common law of England, including the office of notary public. We can get an idea of the nature of the office in the early 1700’s from this description: “We call him a notary public, who confirms and attests the truth of any deeds or writings, in order to render the same more credible and authentic in any country whatsoever. And he is principally made use of in courts of judicature and in business relating to merchants. For a notary public is a certain kind of witness, and therefore, ought to give evidence touching such things as fall under his corporeal senses, and not of such matters as fall under the judgement of understanding.”
The Notary in America
The office of notary public did not develop in America as it did in Europe. This was because the colonists adopted the common law of England where the office never took deep roots as it did in other countries. The State of Louisiana is an exception. Louisiana was settled by the French (whose legal system is based on the Roman law), and the functions of notaries are more extensive.
Early colonial charters and state constitutions did not mention the office of notary public. There was no need to. The office was a part of the accepted rules the colonists brought with them. Common law and the customs and rules recognized among merchants also defined the duties of the office.
The Colony of New Haven (Connecticut) appointed the first notary public in America in 1639. During the seventeenth century, Massachusetts, New Amsterdam (New York), and Virginia appointed notaries. Legislatures appointed the first notaries. Later the Governors, as chief executives, assumed the right to appoint notaries. In 1720, the Archbishop of Canterbury appointed a notary in Boston, but the notary was forbidden to practice by the Massachusetts Legislature.