NOTARY. — In the modern understanding, the n. is a professional in private practice who has the status of a public official, empowered, within a specified territory, to receive declarations and instruments to which, by virtue of his office, he lends public authenticity. In this respect, although the institution of the notariate has connections with the administrative and legal organization of the Roman age, it dates back to the Middle Ages and had its cradle in Italy.
I. HISTORY
1. Medieval notariate is connected with the Roman tabelliones, public scribes who had their stationes in the Forum (distinct from the notarii [from nota = “abridgment”], shorthand writers in the service of private individuals, and from the scribus, copyists in public offices or also assistants to the tabelliones in the material drafting of the document): their condition, humble in the classical age, was elevated to considerable dignity by Justinian law (Novellae, XXII, XLIV, XLVI, LXXIII), to such an extent that the institution survived the barbarian invasions. Investiture of public writers was conferred both by royal and by pontifical authority and granted to both laymen and clerics; the notariate, however, did not everywhere retain the same character. In the territory subject to Byzantine influence, the tabellionate remained in a certain manner attached to its traditional forms, organizing itself into scholae and almost fossilizing into a closed caste (such were the Roman tabelliones and scrinarii, the latter name deriving from the writers of the papal Chancery, the exceptores and the Ravennate curiales; the curiales of Naples, Gaeta, Sorrento, and Amalfi), strictly subject to the local magistracy; although they were for the most part also drafters of the document, the tabelliones exercised their function more specifically by appending the formula of the completio. In Lombard territory, on the other hand, the prerogatives of the tabelliones were absorbed by the notarii, who, greatly increasing in number, acquired, following an approximation of their office to the judicial institution, the character of magistrates exercising within a given territory the full and exclusive right to issue authentic documents. The Carolingians accepted the institution of the notariate in the form it had assumed among the Lombards, spread it throughout the territory of the Empire (in some countries the old designations tabellia, scriba, scrinarius, and curialis survived for a time, although endowed with new juridical content), and further increased the number of n. by requiring one for every bishop, abbot, and count (Capitulary of 805) and extending the right to appoint them to certain court dignitaries. The importance attained by the notariate, also encouraged by the revival of Roman law, is underscored by the number of schools and by the manner in which the writer now drafts the document, in the first person and in the form of an official record: the presence of witnesses serves only to confer greater solemnity. On the other hand, the authority of the n. sometimes led the contracting parties merely to request that he record the transaction by means of the imbreviatura (v.), without requiring him to draw up the document; but the abuses that resulted induced certain Communes, during the course of the fourteenth century, to adopt, for the protection of the parties, special registers in which the imbreviature were compulsorily transcribed; later (fifteenth–sixteenth centuries), public archives were also created for the custody of the documents of deceased n.2. Just as the civil forum did, so too the ecclesiastical forum had, and still has, its n. If one were to believe the Lib. Pont. (p. 123), the first n. of the Roman Church were entrusted by Clement I (88–79) with the task of drawing up the records of the martyrs, so as to transmit them to posterity in truthful documents; he therefore supposedly assigned one n. to each of the seven ecclesiastical regions into which he divided the city of Rome. Hence the name regional n. This report, however, as is commonly held today, is devoid of any historical value. The same Lib. Pont. attributes other measures in this regard to Pope Anterus (235–36) and Pope Fabian (236–252), who is said to have placed seven subdeacons over the n. (Lib. Pont., I, pp. 147-48). The first n. were undoubtedly clerics, and of a rank lower than that of the subdeacons.
More well founded is the report in the Liber Pontificalis concerning Pope Julius (337–52), who is said to have also entrusted the n. with the task of collecting information and decrees concerning cases brought by clerics before the ecclesiastical judge.
In any event, it is certain that from Gregory I onward the Church had its n. (cf. Jaffé-Wattenbach, nos. 363, 1503), and that the college was presided over by the primicerius (v.). As time went on, the number of n., not only in Rome but also in other cities, continually increased, since the authority to appoint them was conferred, among others, upon the palatine counts. Bishops and abbots had their own n., who were for the most part laymen.
To gain an idea of the multiplicity of the n. attached to the various offices and organs of the Roman Curia, whose activity extended not only throughout the Papal States but also throughout the entire Catholic world, it is enough to examine vol. IV of the indices to G. Moroni’s Dizionario, pp. 550-51. A great many n., in fact, were Camera Apostolica (v.) and its members, to the Apostolic Chancery (v.), the Capitoline Curia, the cardinal Rome (v.), the auditors of the Rota, etc.
Many popes issued constitutions regulating the exercise of the notariate in the Papal States. Notarial offices were often venal or vacable, but Innocent XII suppressed the vacable Capitoline notariates; Clement XIII began abolishing the vacable notarial offices of the Rota with the constitution Licet curandum of 28 December 1762 (Bullarii Rom. continuatio, III, Prato 1840, p. 777 ff.) and subsequently suppressed those of the pope’s auditor, establishing new methods for the exercise of their office. Concerning the reform of the office of the n. and the preservation of the notarial archives, cf. the
motu proprio of Pius VII of 31 May 1822 (ibid., VII, part 2ª, ivi 1852, p. 2232 ff.).
I sommi pontefici emanarono anche provvede norme per la costituzione degli archivi notarili, la loro conservazione ed il deposito in essi degli atti rogati dai n. Urbano VIII, p. es., con la cost. Pastoralis officii nobis del 16 nov. 1625 (Bull. Rom., ed. Taurinensis, XIII, Torino 1868, p. 387 sgg.) istituì l'archivio generale notarile, detto urbaniano dal suo fondatore. Per la direzione, poi, degli archivi notarili di Roma e dello Stato pontificio fu istituita una prefettura, affidata ad un chierico della Reverenda Camera Apostolica (v. cost. Sollicitudo pastoralis di Sisto V del 1º ag. 1588: ibid., IX, ivi 1865, p. 23 sgg). Questo prefetto ebbe anche giurisdizione sui n. Interessante è esaminare le norme per la riforma dei n. e per la conservazione degli archivi notarili, emanate nel motu proprio di Pio VII del 31 maggio 1822 (Bull. Rom. contin., VII, parte 2ª, Prato 1852, p. 2232 sgg.). Dopo il motu proprio di Pio IX del 29 dic. 1847 (Atti del s. pont. Pio IX, parte 2ª, I, Roma 1857, tit. 2, art. 19, n. 5, p. 198) i n. dello Stato pontificio furono alle dipendenze del Ministero dell'interno. È da ricordare che tra i privilegi che i sommi pontefici erano soliti concedere ai loro famigliari era anche quello di registrarli ed ascriverli nel numero dei n. pontifici e della Sede Apostolica (Bull. Rom., passim; cf. tra gli altri il breve di Pio VI in data 22 giugno 1775; Bullar. Rom. cont., VI, Prato 1847, p. 96 sgg., in cui si dichiarano anche i privilegi, facoltà, esenzioni, immunità ecc. godute da questi n.). Non fu neanche raro il caso che i pontefici neo eletti ascrivessero a questo notariato i conclavisti, che avevano partecipato al conclave in cui erano stati esaltati al soglio papale (cf. motu proprio di Pio VII del 26 giugno 1829: ibid., IX, ivi 1856, p. 31 sgg.).
II. THE NOTARY IN THE CURRENT LAW OF THE CHURCH
Canon 373 of the CIC establishes that the bishop may appoint certain notaries whose acts and signature shall have public authority. Such notaries must be chosen from among clerics of excellent reputation and beyond all suspicion; in the absence of clerics, they may also be chosen from among laymen who possess the said requirements of reputation and credibility. The notary, however, in criminal cases involving clerics, must always be a priest. An ecclesiastical notary may be removed from or suspended in his office by the person who appointed him, or by his successor or superior. His competence may, according to the act of appointment, extend either to all acts or only to judicial acts, or even to those of particular cases or matters, and is always limited to the territory of the bishop by whom he was appointed. The specific competence of this notary is defined by canon 374, which declares that he must draw up the acts or documents relating to dispositions of last will, obligations, judicial citations or summonses, decrees, sentences, etc. In his writings—for example, in the records of judicial inspections or examinations—he must faithfully describe what he actually does, the persons who are present, etc., and sign the act, also affixing the date. He must also sign every sentence issued by the ecclesiastical judge. Furthermore, having observed the requisite precautions (cf. can. 1645 § 3), he must produce for the legitimate requester the acts or instruments preserved in the archive, and declare their copies to conform to the original.The notary, moreover, who performs his work in the ecclesiastical tribunal must first take an oath to fulfil his office properly and faithfully. He is also bound by official secrecy, otherwise being subject to the penalties referred to in cann. 1625 §§ 2 and 3, and 2144. In every canonical trial a notary must be present to perform the office of recording clerk, and consequently acts that have not been drawn up by him or at least signed by him are held to be null. Therefore the ecclesiastical judge, if the bishop has not already made provision, before beginning a trial, must
NOTAIO — S. Amando dictates his testament to Bodemondo. Twelfth-century manuscript from the abbey of Elnone—Valenciennes.
to appoint, as actuary, one of the lawfully constituted notaries. This actuary must also be present at the examination of witnesses in the case.
The CIC establishes that the notary attached to the S. Congregation of Rites must be one of the participating protonotaries apostolic by number. Every process of beatification and canonization, whether apostolic or ordinary, must always be attended by a notary or actuary who, except in cases of necessity, may never be a religious. An assistant or adjunct notary may be granted to this notary. In these processes, if they take place outside Rome, the notary may be the same as that of the diocesan curia, whereas in Rome this office belongs to the notary of the S. Congregation of Rites or, in his absence, to the notary of the vicariate.
The new Constitution on the S. R. Rota (constitution Sapienti consilio, 29 June 1908) contains regulations concerning the two notaries of this tribunal, who also perform the duties of actuaries and chancellors. Articles 38, 39, and 40 of the Normae S. Romaniae Rotae Tribunalis establish their particular functions. Together with the dean of the Rota, they sign the appointment letter of the junior officials of this Tribunal.
The Supreme Tribunal of the Apostolic Signatura also has its own notary for drawing up the acts, safeguarding the Archives, and assisting the secretary of that Tribunal.
The Supreme S. Congregation of the Holy Office has among its officials a notary and several substitute notaries. Their functions are defined in the Ordo servandus, appended to the constitution Sapienti consilio.
Finally, the two present notaries of the Reverenda Camera Apostolica have, respectively, the duties of secretary and chancellor, and of his substitute. Before 1870, they had more extensive functions than those now assigned to them by no. V, 1 of the constitution Ad incrementum decoris of Pius XI, dated 15 August 1934 (AAS, 26 [1934], p. 513). They retain more important responsibilities, however, during the period of the vacancy of the See, when they draw up the acts of the Holy See (cf. the cited constitution, no. C). These responsibilities were confirmed in nos. 15, 50, 56, and 105 of the constitution Vacantii Apostolicae Sedis of Pius XII, dated 8 December 1945 (AAS, 38 [1946], pp. 72 ff.).
III. NOTARIAL MORALITY
By virtue of his office, the n. is called upon to clarify property and family situations; he comes into contact with every social class, which sees in him the custodian of public trust, the equitable mediator of conflicting interests that must be harmonized within the organic unity of the contract.Knowledge, expertise, and diligence, joined to devotion to truth and observance of professional secrecy, are indispensable for the n. He may not become a collaborator in injustices, nor consent to the use of illicit means, morally or civilly, such as lying, fraud, or simulation, not even to achieve a good end.
His social function leads him to harmonize the interests of the contracting parties and to deny protection to the demands of one party whenever they are detrimental to the other. A serene adviser to the parties and a just moderator of their interests, he must adhere to the strictest impartiality and deny his services to anyone who seeks to take advantage of another’s good faith.
There are contracts that may be defined as the touchstone of notarial probity, such as wills, partitions of inheritances, instruments concerning minors, and deposits of sums of money. In these matters, the n.’s work cannot be limited to a merely formal intervention; rather, it must be inspired by the principles of the profession, understood as a most noble mission: settling disputes, appeasing resentments, restoring peace within families, arranging estates, preventing the dissipation of wealth in interminable lawsuits, and safeguarding widows and orphans in their moral and material interests.
Even in the most controversial cases, the n. will know how to distinguish the licit from the illicit, law from morality, and his own interest from that of others. In this way, professional work is transformed into a mission directed toward the implementation of a higher program of goodness and justice. In a felicitous expression that captures his most delicate and humane functions, the n. is defined as “the adviser on intimate affairs.” Especially in small towns, he is the consultant accessible to all, who suggests “what must be done,” the judge and supreme regulator of the affairs and family estates that he has seen take shape through years of work and renunciation.
Perhaps no other professional has greater need than he of diligence, uprightness, a sense of duty, and balance, because very often he lives amid the clash of the basest instincts, avarice, and unbridled greed, which besiege him and whirl around him, attempting in a thousand ways to bend his conscience and make him close his eyes when vigilance is required, lest he play into the hands of the most cunning, and to keep his head held high, lest he be overcome by the mire that rises.