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It is impossible to fix the date at which notaries first began to exercise their calling in England. Such knowledge as we have of their earlier activities makes it plain that their employment was intermittent during the first of these three periods. They were only indispensable in so far as the Ecclesiastical Courts required their services, for there was nothing to compel the private citizen to employ a notary if he wished to execute a deed or to make his will, or the like. Moreover, as Professor Holdsworth has pointed out1, our foreign trade was at this time almost entirely in the hands of foreigners, so that whether one envisages the notary as a legal practitioner or merely as a functionary of international commerce, it is obvious that there would be no place for him amongst the officers of the English Courts. In rare cases notaries appear to have been employed to authenticate legal documents2, and they were also utilised on occasion to prepare formal records of acts of state. But it could never be said of them as of the continental notaries that "nothing escaped them, whether politics, art, commerce, public or home life." Such notaries as were to be found, seem to have been ecclesiastics, probably foreigners for the most part, who based their claim to practice on the fact that they had been appointed either by the Pope or the Emperor, or by some other person having power to create notaries, as for instance, the Counts Palatine. In other words the notary was at this period of English history merely a free lance,
1 History of English Law, Vol. V., p 115.
2 A number of such instances are mentioned in Brooke's Notary, p. 9 et sey. The earliest case on record seems to have been the attestation by a notary of the grant of a manor in the reign of Edward the Confessor.
• Ibid, p. 13. An instance of this was the appointment of two notaries, William de Feryby and Dionyse Lapham, to notify Richard II. of his deposition.
Blancard, Documents inédits sur le Commerce de Marseille au Moyen Age, Vol. I., p. xxxvi. (cited by Holdsworth).
without any definite status, whose services were in the nature of a luxury rather than a necessity. At the same time the position which notaries had won for themselves on the continent would sometimes make it necessary to employ a notary in England. Occasions would no doubt arise when it was imperative that documents, intended to be operative in a foreign country, should be authenticated by some public official so that they might be received in evidence abroad as instrumenta publica. In such a case there would be no alternative to the employment of a papal or an imperial notary. Some inconvenience was undoubtedly caused by the absence of an organised body of notaries and notarial attestations were sometimes forged, and often affixed to documents long after they had been executed. This appears from the proceedings of the General Council of London. In the year 1237 Cardinal Otho, a papal legate, held a General Council in London to enquire into the state of the Church of England, and we find it stated in the transactions of this Council that there were no notaries practising in the country at that date, and that accordingly it was advisable for steps to be taken to provide certain ecclesiastical dignitaries with official seals so as to enable them to authenticate contracts and other legal instruments.1 If this suggestion was ever put into effect, which seems doubtful, it does not appear to have resulted in the creation of an organised body of English notaries, for such traces as can be found of the employment of notaries during the next hundred years all point to the fact that only papal and imperial notaries plied their calling in England. An attempt to curtail their activities was made by Edward II. in 1320, when as one of the measures taken by him to
1 Canons of the General Council of London, 1237. (Brooke, op. cit., P. 10).
2 Brooke, op. cit., p. 11.
assert the royal prerogative against papal encroachments, the Archbishop of Canterbury and the Sheriffs of London were ordered to restrain papal and imperial notaries from practice.1
The policy of excluding papal and imperial notaries from practice does not, however, appear to have met with much success, as we find them practising in England down to the reign of Henry VIII. Notaries were appointed at this time by the Archbishop of Canterbury, acting as the delegate of the Pope, but apparently some of them at all events held direct appointments from the Pope or the Holy Roman Empire. Originally they were ecclesiastics, but the policy of the Church in restraining the clergy from following secular avocations resulted in their withdrawal from ordinary notarial practice, and it seems probable that towards the end of the 14th century the profession, now established on a firm basis, and emancipated from papal and imperial control, began to be confined to laymen, with the exception of the "ecclesiastical notaries," who were officers of the Courts of the Church. They appear to have possessed a monopoly of authenticating documents for use abroad, but to have shared the right to practice "Conveyancers "5 with another class of nonforensic legal practitioners then existent, namely the "Scriveners."
1 Brooke, op. cit., p. 12.
2 Ibid., P. 12. Notaries are referred to in the Statute of
Provisors, 1353, and in 1365 a certain Sir John Bourne was committed to prison for employing a papal notary in proceedings in the Court of Exchequer.
3 The records of the Scriveners Company contain a full list of Notaries practising in London, and down to the reign of Henry VIII. those of them who were papal and imperial notaries are specially designated as such.
Brooke, op. cit., p 14, gives it as his view that the severance of the functions of the Ecclesiastical and Civil Notaries took place in Richard II.'s reign, but he cites no authority in support of this opinion.
5 The employment of this term is of course an anachronism, as it did not come into general use till much later. Holdsworth, op. cit., (Vol. VI., p. 447). Instances of what we should now term conveyancing" by notaries are given in Brooke, op. cit., p. 14.
Owing to the isolation of English Medieval Law from continental influences, the technique of "Conveyancing" developed in England along totally different lines from those adopted elsewhere, and in particular the law never insisted on the authentication of wills, deeds, or written contracts by a notary. There was consequently no reason why the public should resort to the notaries in preference to other lawyers. In all probability "conveyancing" work was at one period in English legal history carried on indiscriminately by notaries and scriveners, and this cardinal fact, coupled with the disappearance of the scriveners and the sequence of events which resulted in the concentration of such work in the hands of the attorneys to the virtual exclusion of the notaries, would seem to furnish the true explanation of the fact that the English notary public at the present day occupies such a very different position from that held by his colleagues in continental countries. The first of the professional bodies to assert a claim to exclude competitors from conveyancing business was that of the "scriveners."
The "scrivener," as his name denotes, was originally one who carried on the business of a public scribe. No doubt he exercised his calling at first in a very humble way, probably as a letter-writer, but eventually we come across him as an expert in the guise of a skilled copyist of the so-called "Court Hand." From being a mere copyist of such documents to becoming the legal practitioner who draws them up is a short and inevitable stage, and we may therefore assume with some confidence that the "scriveners" developed into a body of legal practitioners exercising the functions of conveyancers. The tendency of the
time was for those who carried on a trade or profession to form themselves into fraternities, with the object of obtaining a monopoly of the exercise of their calling, and in 1373 the scriveners of the City
of London formed themselves into a company for that purpose, an example which appears to have been followed in other parts of the country.1 The early history of this company is unfortunately more or less of a sealed book, as its records were for the most part consumed in the great fire of London in 1666, but in London at all events the Scriveners' Company was able to preserve its monopoly, though only at the price of opening its doors to notaries and attorneys who wished to engage in conveyancing business. Thus in course of time the company came to include three elements in active competition with one another.2 The first of these to yield up possession of the ground were, in all probability, the scriven
whose activities began to assume a different character. They turned from legal business to the transaction of business of a financial nature, which ultimately came to be known as "scrivening," and consisted in the receipt from clients of monies to be invested for them at the scrivener's discretion. The motive which underlay this change of front was no doubt the desire to secure in this way the profitable work of preparing mortgage deeds or other instruments required in connection with the investments, but eventually "scrivening" came to indicate a separate business somewhat resembling that of the modern stock-broker. A Bankruptcy Act passed in the reign of James I. mentions scriveners and defines them as persons who "receive other men's monies or estates into their trust or custody."
1 Freshfield: Records of the Society of Gentlemen Practisers. The Scriveners at York appear to have formed a Company, but very little is known of the activities of the provincial scriveners. The London Company of Scriveners received a Charter from James I. in 1616.
2 The records of the Company prove that notaries and attorneys were admitted to membership as well as scriveners (Ditchfield, City Companies, P. 312).
321 Jac. I. c. 19 s. 2. The golden age of scrivening was the 17th century, when large fortunes were made in this way, as for instance, by Sir Robert Clayton, who became Lord Mayor (Ditchfield, City Companies, p. 312). John Milton's father was a scrivener.