NOTARY
The notary is, in modern conception, a free professional who acts as a public official with the power to receive, within a defined territory, declarations and acts in respect of which, by virtue of his office, he provides public faith. In this respect, the institution of notaries, although having roots in the administrative and legal system of the Roman age, dates back to the Middle Ages and has its cradle in Italy.
### I. HISTORY
Medieval notaries trace their origins to the Roman *tabelliones*, public scribes who had their *stationes* in the Forum (distinct from the *notarii* [from *nota* = “abbreviation”], stenographers in private employ, and the *scribae*, copyists in public offices or assistants to the *tabelliones* for the physical drafting of the act). Their status, humble in classical antiquity, was elevated to notable dignity by Justinianic law (Novellae, XXII, XLIV, XLV, LXXIII), so much so that the institution survived the barbarian invasions. The investiture of public scribes was granted both by royal and papal authority and was extended to laymen as well as clerics; however, notaries did not retain the same character everywhere. In areas under Byzantine influence, the *tabellionato* remained in some ways tied to its traditional forms, organizing itself into *scholia* and becoming almost fossilized into a closed caste (such as the Roman *tabelliones* and *scriniarii*, the latter deriving their name from the writers of the papal Chancery, the *exceptores* and the curiales of Ravenna; the curiales of Naples, Gaeta, Sorrento, Amalfi), strictly subject to local magistracy. Although they were mostly also draftsmen of documents, the *tabelliones* exercised their function more specifically by appending the formula of *completio*.
In Lombard territory, on the other hand, the prerogatives of the *tabelliones* were absorbed by the *notarii*, who, having greatly increased in number, acquired—through a rapprochement of their office with the judicial institution—the character of magistrates exercising within a defined territory the full and exclusive right to issue authentic acts. The Carolingians adopted the institution of notaries in the form it had taken among the Lombards, spreading it throughout the territory of the Empire (in some regions the old designations of *tabellio*, *scriba*, *scriniarii*, *curialis* survived for some time, albeit with new legal content), and further increased the number of notaries by prescribing one for each bishop, abbot, and count (Capitular of 805) and extending the right to appoint them to certain court dignitaries. The importance attained by notaries, also favored by the revival of Roman law, is evidenced by the number of schools and by the manner in which the scribe now drafted the document in the first person, in the form of a record: the presence of witnesses served only to confer greater solemnity. On the other hand, the authority of the notary was such that 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 full document; but the abuses that arose from this led some communes, in the course of the 14th century, to adopt special registers for the protection of the parties, in which the *imbreviature* had to be transcribed; later (15th–16th centuries), public archives were also created for the custody of the acts of deceased notaries.
### 2. ECCLESIASTICAL NOTARIES
Just as civil law had its notaries, so too did ecclesiastical law. If one were to credit the *Liber Pontificalis* (p. 123), the first notaries of the Roman Church were entrusted by Pope Clement I (88–97) with the task of drafting the acts of the martyrs, so as to transmit them to posterity in authentic documents; for this reason, he is said to have assigned a notary to each of the seven ecclesiastical regions into which he divided the city of Rome. Hence the name “regional notaries.” This account, however, is now commonly regarded as devoid of any historical value. The same *Liber Pontificalis* attributes other provisions on the matter to Pope Anterus (235–36) and Pope Fabian (236–52), who is said to have placed seven *suddiaconi* over the notaries (Pont. Rom., I, pp. 147–48).
The first notaries were undoubtedly clerics, of a rank inferior to that of subdeacons. More reliable is the account in the *Liber Pontificalis* concerning Pope Julius I (337–52), who is said to have assigned the notaries the additional duty of collecting the decisions and decrees in cases handled by clerics before the ecclesiastical judge. In any case, it is certain that from the time of Gregory I onward the Church had its own notaries (cf. Jaffé-Wattenbach, nos. 363, 153), and that the college was presided over by the *primicerius* (v.). In due course, the number of notaries not only in Rome but also in other cities continued to grow, since the authority to appoint them was granted, among others, to the palatine counts. Bishops and abbots had their own notaries, who were mostly laymen.
To gain an idea of the multiplicity of notaries attached to the various offices and organs of the Roman Curia—whose activity extended not only to the Papal States but to the entire Catholic world—one need only examine vol. IV of the indices in G. Moroni’s *Dizionario* (pp. 550–551). A large number of notaries were in fact in the Camera Apostolica (v.) and its officials, the Apostolic Chancery (v.), the Capitoline Curia, the cardinal vicar and the vicariate of Rome (v.), the auditors of the Rota, etc.
Many popes issued constitutions to regulate the exercise of notaries in the Papal States. Notarial offices were often venal or *vacabili*, but Innocent XII suppressed the *vacabili* capitoline notariates, Clement XIII began to abolish the *vacabili* notarial offices of the Rota with the constitution *Licet curandum* of 28 December 1762 (*Bullarii Rom. continuatio*, III, Prato 1840, pp. 777 ff.), and later suppressed those of the auditor of the pope, establishing new methods for the exercise of their office. Regarding the reform of the office of notaries and the preservation of notarial archives, cf. the
*Notar luris* – Table of abbreviations drawn from legal manuscripts.
(from E. de Moreau, *Illustrations de l’Edit de Bologne des origines à 1414*, Brussels 1878, pl. 81; the motu proprio of Pius VII of 31 May 1822: ibid., VII, part 2, ibid. 1852, pp. 2232 ff.; Bullarium Pii VII, ibid., VII, part 2, Prato 1852, pp. 2232 ff.).
The Supreme Pontiffs also issued provisions for the establishment of notarial archives, their preservation, and the deposit in them of the acts 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, pp. 337 ff.) established the general notarial archive, called the “Urbanian” after its founder. For the direction, then, of the notarial archives of Rome and the Papal States, a prefecture was instituted, entrusted to a cleric of the Apostolic Camera (v. const. *Sollicitudo pastoralis* of Sixtus V of 1 Aug. 1588: ibid., IX, ibid. 1865, pp. 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, pp. 2232 ff.). After the motu proprio of Pius IX of 29 Dec. 1847 (Acts of the Supreme Pontiff Pius IX, part 2, I, Rome 1857, tit. 2, art. 19, n. 5, p. 198), the notaries of the Papal States were placed under the jurisdiction of the Ministry of the Interior. It is worth recalling that among the privileges that the Supreme Pontiffs were accustomed to grant to their familiars was also that of registering and enrolling them among 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, pp. 96 ff.; in which the privileges, faculties, exemptions, immunities, etc. enjoyed by these notaries are also declared).
It was not uncommon for newly elected pontiffs to enroll among this notariate the conclavists who had taken part in the conclave in which they had been raised to the papal throne (cf. motu proprio of Pius VII of 26 June 1829: ibid., IX, ibid. 1856, pp. 31 ff.).
II. THE NOTARY IN THE PRESENT CANON LAW OF THE CHURCH
Canon 373 of the *Codex Iuris Canonici* provides that the bishop may appoint certain notaries whose acts and signatures are to enjoy public faith. Such notaries must be chosen from among clerics of unblemished reputation and above all suspicion, and, in the absence of suitable clerics, also from among lay persons who possess the same qualities of reputation and credibility. The ecclesiastical notary, however, must always be a priest in criminal cases involving clerics. The ecclesiastical notary may be removed or suspended from office by the authority that appointed him or by his successor or superior. His competence, according to the act of appointment, may extend either to all acts or only to judicial acts or even to specific causes or matters, and is always limited to the territory of the bishop who appointed him. The specific competence of this notary is defined by canon 374, which states that he must draw up acts or documents relating to dispositions of wills, obligations, judicial citations or summonses, decrees, sentences, etc. In his writings, for example, in the minutes of a judicial inspection or recognition, he must faithfully describe what he has actually performed, the persons present, etc., and sign the act, appending the date. He must also sign every sentence issued by the ecclesiastical judge. Furthermore, upon request and with the necessary safeguards (cf. can. 1645 § 3), he must exhibit the acts or instruments preserved in the archive to the legitimate requester and certify that copies conform to the original.The notary who performs his office in the ecclesiastical tribunal must first take an oath to fulfill his office faithfully and well. He is also bound to professional secrecy, otherwise he is liable to the penalties set forth in cann. 1625 §§ 2 and 3, and 2144. In every canonical process, the presence of a notary is required to perform the office of actuary, so that acts not signed by him or at least under his supervision are considered null. Therefore, the ecclesiastical judge, if the bishop has not already done so, must appoint one of the duly constituted notaries to perform the functions of actuary before commencing a trial. This actuary must also be present during the examination of witnesses in the case.
The *Codex* provides that the notary at the Sacred Congregation of Rites must be one of the Apostolic protonotaries *de numero participantium*. In all processes of beatification and canonization, whether apostolic or ordinary, a notary or actuary must always be present; this notary, except in cases of necessity, must 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 of the diocesan curia may serve in this capacity, while 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 (*Sapienti consilio*, 29 June 1908), norms are found 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. Together with the Dean of the Rota, they sign the appointment letters of the subordinate officials of this tribunal.
The Supreme Tribunal of the Apostolic Signatura also has its own notary for the drafting of acts, the custody of the archive, and to assist the secretary of that tribunal.
The Supreme Sacred Congregation of the Holy Office has as its officials one notary and various substitute notaries. Their functions are defined in the *Ordo servandus*, annexed to the constitution *Sapienti consilio*.
Finally, the two current notaries of the Apostolic Camera have one the functions of secretary and chancellor, the other that of substitute. Before 1870 they had more extensive functions than those now assigned to them by article V of the constitution *Ad incrementum decoris* of Pius XI of 15 August 1934 (AAS, 26 [1934], p. 513). They retain, however, more important duties during the period of the *Sede vacante*, in which they draw up the acts of the Holy See (cf. cited constitution, no. C). These duties have been confirmed in nos. 15, 50, 56, and 105 of the constitution *Vacantis Apostolicae Sedis* of Pius XII dated 8 Dec. 1945 (AAS, 38 [1946], p. 72 ff.).
III. THE NOTARIAL ETHIC
By virtue of his office, the notary is called upon to clarify patrimonial and family situations; he comes into contact with every social class that sees in him the depository of public faith, the equitable composer of opposing interests that must be harmonized in the organic unity of the contract.Doctrine, expertise, and diligence, united with a reverence for truth and observance of professional secrecy, are indispensable for the notary. He cannot become an accomplice to injustices, nor may he consent to the use of illicit means, whether morally or civilly, such as falsehood, fraud, or simulation, even to achieve a good end.
His social function leads him to harmonize the interests of the contracting parties and to deny protection to requests by one party that would be detrimental to the other. As a serene counsellor and just moderator of their interests, he must maintain the most scrupulous impartiality and refuse his ministry to anyone seeking to take advantage of another’s good faith.
There are contracts that may be called the touchstone of notarial probity, such as wills, hereditary divisions, acts concerning minors, and deposits of sums. In these, the notary’s work cannot be limited to a mere formal intervention, but must be inspired by the dictates of the profession, understood as a most noble mission, settling disputes, soothing resentments, restoring peace to 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 notary will know how to distinguish the lawful from the unlawful, right from wrong, and his own interest from that of others. In this way, professional work is transformed into a mission directed toward the realization of a higher program of goodness and justice. With a felicitous expression that captures his most cherished and humane functions, the notary is defined as “the counsellor of intimate affairs.” Above all in small centers, he is the accessible consultant who suggests “what ought to be done,” the supreme judge and regulator of family affairs and estates, which he has seen take shape over years of labor and renunciation.
Perhaps no other professional needs more than he diligence, rectitude, a sense of duty, and balance, for very often he lives amid the clash of the basest instincts, of avarice and unbridled greed that besiege him, swirl around him, and in a thousand ways seek to bend his conscience and make him shut his eyes when he should be vigilant, so as not to play into the hands of the craftiest, and to hold his head high so as not to be overcome by the rising tide of filth.