Notary

NOTARY. - In the modern conception, the notary is a free professional who has the status of a public official with the power to receive, within a given territory, declarations and acts of which, by virtue of his office, he makes public faith. From this point of view the institution of the notariate, although it has roots in the administrative and legal order of the Roman age, dates back to the Middle Ages and has its cradle in Italy.

I. HISTORY

1. The medieval notariate links back to the Roman tabelliones, public scribes who had their stationes in the Forum (distinct from the notarii [from nota = "compendium"], shorthand writers in the service of private individuals, and from the scribae, copyists attached to public offices or even assistants of the tabelliones for the material drafting of the document): their condition, humble in the classical age, was raised to notable dignity by Justinian law (Novellae, XXII, XLIV, XLVI, LXXIII), so much so that the institution survived the barbarian invasions. The investiture of public scribes was granted both by royal and by pontifical authority and conferred on laymen as well as clerics; the notariate, however, did not preserve the same physiognomy everywhere. In the territory subject to Byzantine influence the tabellionate remained in a certain way tied to its traditional forms, organizing itself into scholae and becoming almost fossilized into a closed caste (such were the Roman tabelliones and scrinarii, the latter deriving their name from the writers of the pontifical Chancery, the exceptores and the curiales of Ravenna; the curiales of Naples, Gaeta, Sorrento, 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 affixing the formula of the completio. In Lombard territory, on the other hand, the prerogatives of the tabelliones were absorbed by the notarii, who, greatly increased in number, acquired, following a bringing of their office closer to the judicial institution, the physiognomy of magistrates exercising within a determined territory the full and exclusive right to issue authentic acts. 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 of tabellio, scriba, scrinarius, curialis survived for some time, though clothed with a new juridical content), and further increased the number of notaries by prescribing one for each bishop, abbot and count (Capitulary of 805) and by extending the right to appoint them to certain court dignitaries. The importance attained by the notariate, favored also by the revival of Roman law, is brought out by the number of schools and by the manner in which the writer now drafts the document, in the first person, in the form of a written record: the presence of witnesses serves only to confer greater solemnity. On the other hand, the authority of the notary brought it about that the contracting parties sometimes limited themselves to requesting from him the registration of the transaction by means of the imbreviatura (v.), without demanding the drafting of the document; but the abuses that resulted induced certain Communes to adopt, in the course of the 14th century, for the protection of the parties, special registers in which the imbreviature were obligatorily transcribed; later (15th-16th centuries) public archives were also created for the custody of the acts of deceased notaries.

Alessandro Pratesi

2. Just as the civil forum, so too the ecclesiastical forum had and has its notaries. If one were to give credence to the Lib. Pont. (p. 123), to the first notaries of the Roman Church Clement I (88-79) entrusted the task of drafting the acts of the martyrs, so as to hand them down to posterity in truthful documents; for this reason he would have assigned one notary to each of the seven ecclesiastical regions into which he divided the city of Rome. Hence the name of regional notaries. The report, however, as is commonly held today, is devoid of any historical value. The same Lib. Pont. attributes other provisions in the matter to Pope Anterus (235-36) and to Pope Fabian (236-252), who would have placed 7 subdeacons over the notaries (Lib.

Pont., I, pp. 147-48). The first notaries were undoubtedly clerics, and of a rank lower than that of the subdeacons.

Better founded is the report of the Liber Pontificalis referring to Pope Julius (337-52), who would have given the notaries also the task of collecting news and decrees of the cases handled by clerics before the ecclesiastical judge.

In any case it is certain that from Gregory I onward the Church had its notaries (cf. Jaffé-Wattenbach, nos. 363, 1503) and that the college was presided over by the primicerius (v.). In the course of time the number of notaries not only in Rome but also in other cities kept increasing more and more, since the authority to appoint them was conferred, among others, on the counts palatine. Bishops and abbots had their notaries, who were for the most part laymen.

If one wishes to have an idea of the multiplicity of notaries attached to the various offices and bodies of the Roman Curia, who extended their activity not only to the Papal State but also to the entire Catholic world, it suffices to examine vol. IV of the Indici of G. Moroni's Dizionario, pp. 550-51. A great number of notaries, in fact, were in the service of the Reverend Apostolic Camera (v.) and its members, of the Apostolic Chancery (v.), of the Capitoline Curia, of the cardinal vicar and of the vicariate of Rome (v.), of the auditors of the Rota, etc.

Many popes issued constitutions to regulate the exercise of the notariate in the Papal State. Notarial offices were often venal or vacable, but Innocent XII suppressed the vacable Capitoline notariates, Clement XIII began to abolish the vacable notarial offices of the Rota with the constitution Licet curandum of 28 Dec. 1762 (Bullarii Rom. continuatio, III, Prato 1840, p. 777 ff.) and then suppressed those of the auditor of the pope, establishing new methods for the exercise of their office. On the reform of the office of notaries and the preservation of notarial archives, cf. the motu proprio of Pius VII of 31 May 1822 (ibid., VII, part 2, ibid. 1852, p. 2232 ff.).

The supreme pontiffs also issued norms for the establishment of notarial archives, their preservation, and the deposit in them of deeds drawn up by notaries. Urban VIII, for example, with the constitution Pastoralis officii nobis of 16 Nov. 1625 (Bull. Rom., ed. Taurinensis, XIII, Turin 1868, p. 387 ff.) established the general notarial archive, called "Urbanian" after its founder. For the direction, moreover, of the notarial archives of Rome and of the Papal State, a prefecture was established, entrusted to a cleric of the Reverend Apostolic Camera (v. the constitution Sollicitudo pastoralis of Sixtus V of 1 Aug. 1588: ibid., IX, ibid. 1865, p. 23 ff.). This prefect also had jurisdiction over notaries. It is interesting to examine the norms for the reform of notaries and for the preservation of notarial archives, issued in the motu proprio of Pius VII of 31 May 1822 (Bull. Rom. contin., VII, part 2, Prato 1852, p. 2232 ff.). After the motu proprio of Pius IX of 29 Dec. 1847 (Atti del s. pont. Pio IX, part 2, I, Rome 1857, tit. 2, art. 19, no. 5, p. 198) the notaries of the Papal State were placed under the Ministry of the Interior. It should be remembered that among the privileges which the supreme pontiffs were accustomed to grant to their familiars was also that of registering them and enrolling them in the number of the pontifical notaries and of the Apostolic See (Bull. Rom., passim; cf. among others the brief of Pius VI dated 22 June 1775; Bullar. Rom. cont., VI, Prato 1847, p. 96 ff., in which are also declared the privileges, faculties, exemptions, immunities etc. enjoyed by these notaries). Nor was it rare for newly elected pontiffs to enroll in this notariate the conclavists who had taken part in the conclave in which they had been raised to the papal throne (cf. the motu proprio of Pius VII of 26 June 1829: ibid., IX, ibid. 1856, p. 31 ff.).

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 carry public authority. Such notaries must be chosen from clerics of the highest repute and above all suspicion and, in the absence of clerics, also from laymen who possess the said requirements of repute and credibility. In criminal cases of clerics, however, the notary must always be a priest. The ecclesiastical notary can be removed and suspended from his office by the one who appointed him or by his successor or by his 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 determined causes or affairs, and it 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, in which it is declared that he must draw up the acts or documents relating to dispositions of will, obligations, judicial citations or summonses, decrees, sentences, etc. In his writings, for example in the records of access or of judicial recognition, he must faithfully describe what he actually carries out, 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. He must furthermore exhibit, with the requisite precautions taken (cf. canon 1645 § 3), to the legitimate petitioner the acts or instruments preserved in the archive, and declare their copies to conform to the original.

The notary, moreover, who gives his service in the ecclesiastical tribunal must first take an oath to fulfill his office well and faithfully. He is, furthermore, bound to official secrecy, being otherwise liable to the penalties referred to in canons 1625 §§ 2 and 3, and 2144. In every canonical process a notary must be present who fulfills the office of actuary, so that acts which 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 provided, before beginning a trial must to assume, with the functions of actuary, one of the lawfully appointed notaries. This actuary must also be present at the examination of the witnesses in the case.

The CIC establishes that the notary attached to the Sacred Congregation of Rites must be one of the apostolic protonotaries of the participating number. All processes of beatification and canonization, whether apostolic or ordinary, must always be attended by a notary or actuary, who, except in cases of necessity, shall never be a religious. To this notary a deputy or assistant notary may be granted. In these processes, if they take place outside Rome, the notary may be the same notary of the diocesan curia, whereas in Rome this office belongs to the notary of the Sacred Congregation of Rites or, in his absence, to the notary of the vicariate.

In the new Constitution on the Sacred Roman Rota (const. Sapienti consilio, 29 June 1908) there are norms concerning the two notaries of this tribunal, who also exercise the office of actuaries and chancellors. Articles 38, 39 and 40 of the Normae S. Romanae Rotae Tribunalis establish their particular functions. They, together with the dean of the Rota, sign the letter of appointment of the lower officials of this Tribunal.

The Supreme Tribunal of the Apostolic Signatura also has its own notary for the drafting of acts, for the custody of the Archive and for assisting the secretary of the said Tribunal.

The Supreme Sacred Congregation of the Holy Office has as its officials a notary and various substitute notaries. Their functions are defined in the Ordo servandus, annexed to the const. Sapienti consilio.

Finally, the two current notaries of the Reverend Apostolic Chamber have, one the functions of secretary and chancellor, the other those of his substitute. Before 1870 they had broader functions than those now assigned to them by no. V, 1 of the const. Ad incrementum decoris of Pius XI of 15 Aug. 1934 (AAS, 26 [1934], p. 513). More important duties, on the other hand, they retain during the period of the vacant See, in which they draw up the acts of the Holy See (cf. const. cit. no. C). These duties have been confirmed in nos. 15, 50, 56 and 105 of the const. Vacantis Apostolicae Sedis of Pius XII dated 8 Dec. 1945 (AAS, 38 [1946], p. 72 ff.).

Guglielmo Felici

III. THE NOTABLE MORAL

By virtue of his office the notary is called to clarify property and family situations; he comes into contact with every social class, which sees in him the depositary of public faith, the fair composer of opposing interests, which must be harmonized in the organic unity of the contract.

Doctrine, expertise and diligence, united with the worship of truth and the observance of professional secrecy, are indispensable for the notary. He cannot become a cooperator in injustices, nor consent that illicit means be employed, morally and civilly, such as lying, fraud, simulation, not even to attain 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, should they be harmful to the other. A serene counselor of the parties and a just moderator of their interests, he must adhere to the most scrupulous impartiality and deny his ministry to anyone who wishes to deceive the good faith of others.

There are contracts that may be defined as the touchstone of notarial probity, such as wills, hereditary divisions, acts concerning minors, deposits of sums. In these the notary's work cannot be limited to a simple formal intervention, but must be inspired by the dictates of the profession, understood as a most noble mission, composing disputes, soothing rancors, restoring peace in families, settling patrimonies, avoiding the dispersion of wealth in interminable lawsuits, protecting widows and orphans in their moral and material interests.

Even in the most controversial cases, the notary will know how to distinguish the licit from the illicit, right from morality, his own interest from that of others. In this way professional work is transformed into a mission directed to the realization of a superior program of goodness and justice. With an apt expression, which sculpts his most jealous and human functions, the notary is defined as « the counselor of intimate affairs ». Especially in small centers he is the consultant within everyone's reach, who suggests « what must be done », the judge and supreme regulator of family affairs and patrimonies, which he has seen take shape through years of work and renunciations.

Perhaps no other professional has more need than he of diligence, rectitude, sense of duty and balance, because very often he lives amid the clash of the basest instincts, of avarices and unbridled greed that besiege him, swirl around him, attempting in a thousand ways to bend his conscience and make him close his eyes, when it is necessary to be attentive, so as not to play the game of the craftiest, and to hold his head high, so as not to let himself be overcome by the rising mud.

Giuseppe Intersimone