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seems, however, that scrivening was also carried on by attorneys, and possibly also by notaries,1 and all that can be said with any degree of certainty is that the scriveners disappeared from the ranks of the financiers as the result of the developments of banking and stock-broking in modern times, and that at some date, which cannot now be fixed, but was probably early in the 17th century, scrivening had ceased to connote the transaction of legal business. For our purposes it is sufficient to emphasise the fact that conveyancing in fact never became the monopoly of the scriveners, and that they gradually withdrew from it in favour of the other non-forensic members of the profession.
The withdrawal of the scriveners would leave the business of conveyancing to be divided between the notaries and the attorneys. Now the notaries, like the scriveners, never possessed a monopoly of this business. We have already seen that there was nothing in the nature of the case which obliged a person who desired to make a deed or a will to resort to a notary unless he wished to do so, and it is to be assumed that the attorneys, who were more numerous and powerful, gradually began to oust their rivals from the field. It is probable that the commencement of the assertion of their claim coincided with the metamorphosis of scrivening into business of a financial character. When dealing with this question one is moving in the realm of hypothesis, but it is suggested that the probable course of events was as follows. It seems clear that by the reign of James I. the scriveners were beginning to be regarded chiefly
1 In Martyn v. Kingsly (Precedents in Chancery p. 209), a scrivener is defined as a person who "puts out," i.e., invests, money for clients. In Ex. p. Malkin (1812) 2 Rose 27 an instance will be found of an attorney acting as a scrivener, and as late as 1853 Lord Campbell, in Harman v. Johnson (1853) 2 E. & B. at p. 66, said that attorneys frequently acted as scriveners.
as investment brokers,1 and that about this time the attorneys began to assert their right to practice as conveyancers. In Auditor Curle's Case, which was tried before the Court of Common Bench in the reign of James I., reference was made to certain decisions in which it had been ruled that it was not defamatory to say of an attorney that he was unskilled in conveyancing, and Hobart C.J., presiding over the Court, stated that "it doth not appertain to an attorney to make writings." The inference to be drawn from this is that at that date the right of attorneys to practice as conveyancers was not officially recognised, and that they were in theory supposed to concern themselves only with litigation on its nonforensic side. It is, however, clear from the argument in the case referred to that attorneys were even then commencing to undertake conveyancing busi
Another fact which supports the suggestion which has been made is that West's Symboleography, a book containing conveyancing forms, has in its 16th century edition a sub-title viz.: "The Notarie or Scrivener," which disappears from the 17th century editions, thus indicating that somewhere between those dates a change had taken place.3
There is also evidence that about the end of the 16th century the notaries were principally engaged in that part of their business which was connected with international intercourse, and that conveyancing, although undertaken by them, was subsidiary to their main activities. That this was so is borne out by one of the rare glimpses which we get of the Notary Public at this date. In the year 1574 one Richard Candler was granted a royal monopoly of the right
This is to be inferred from the terms of the Bankruptcy Act of James I. But Malynes, writing in the 17th century (Lex Mercatoria), states that a merchant wishing to have a Power of Attorney prepared, could resort either to a notary or a scrivener.
2 Winch's Reports, P. 39.
of making and registering insurance policies and other commercial documents in the City of London. The notaries, finding their livelihood imperilled, promptly complained to the Lord Mayor, and this complaint throws a good deal of light on the nature of the business then being carried on by them. It tells us that the compilation and authentication of such documents as policies of insurance, charter parties, and bills of lading formed the greater part of a notary's business, and that Candler's monopoly bade fair to plunge the notaries and their families into poverty. Two facts stand out prominently from the body of this complaint. In the first place it purports to be presented by "the Company of Notaries of the City of London," consisting of sixteen members. So far as is known no such company ever existed, and it would therefore seem to be highly probable that the sixteen notaries did not form an independent fraternity, but were acting together as notaries who were members of the Scriveners' Company, and that they styled themselves "the Notaries Company" to avoid dragging the scriveners and the attorneys, who were not interested in the matter, into the dispute. Secondly, it seems clear that at this date the work of conveyancing must have been very largely in the hands of the scriveners and perhaps the attorneys, for even allowing for a good deal of exaggeration in a complaint of this description, it is apparent from its terms that a notary's business at that date must have been concerned to a very large extent, if not altogether, with commercial matters rather than with the preparation of legal instruments of the usual kind.1 It does not therefore seem unreasonable to suppose that as early as the end of the 16th century the Notary Public occupied a position very similar to that which he fills at the present day.
1 Stow's Survey of London, Book V., p. 242. Martin's History of Lloyds, p. 36.
The course of events may perhaps be summed up in this way:
In the first stage the scriveners whilst unable to establish a definite monopoly of conveyancing, are successful in compelling the notaries and such attorneys as were conveyancers to become members of their companies.
In the second stage the scriveners gradually diverge from their proper functions and tend to become financial agents, whilst the notaries, being few in number, and occupied with other matters, show no active resistance to the encroachments of their numerous and powerful rivals the attorneys on the field of conveyancing business.
In the third stage, commencing with the 17th century, the attorneys definitely establish their right to do conveyancing business, and eventually oust both their competitors, the scriveners giving way entirely, and the notaries practically abandoning the contest, though in theory still maintaining their right to practice as conveyancers.
The result in any case was that the latter part of the 18th century found the attorneys and solicitors the masters of the situation. The Scriveners' Com
pany of London at that date made a final attempt to exclude non-members from practice as conveyancers in the City, but after prolonged litigation between them and the attorneys and solicitors, represented by the "Society of Gentlemen Practisers," the latter were victorious in the test case of Harrison v. Smith,1 and the struggle was decisively ended. The Scriveners' Company still survives at the present day, and plays an important part in connection with the Notarial Profession, as even now no one may practice as a notary in the City of London, unless he has been admitted to membership of the company.
1 This case, which is reported in full in Freshfield, op. cit., was decided in 1760.
It only remains to deal with the historical causes which have maintained the connection between the Notaries Public and the Church. Originally the power of appointing notaries was vested in the Archbishop of Canterbury as the Pope's representative in England. The Reformation necessitated an alteration of this state of affairs, and by an Act of Parliament passed in the reign of Henry VIII. (the Act concerning Peter's Pence and Dispensations),1 the power of creating notaries was conferred on the "Court of Faculties," an ecclesiastical Court attached to the Archbishop of Canterbury, and presided over by an ecclesiastical judge, namely, the Master of the Faculties. This Court originally had a very wide discretion in appointing notaries, but in the nineteenth century this discretion was regulated by a series of Acts of Parliament which now govern the matter, but still leave the notary in the position of an officer of the church.2
There have been few changes in the status of a Notary Public of recent years, and none of any great importance. His privileges have been jealously guarded, and interfered with as little as possible by modern legislation. The principal alteration which has taken place in his functions is one which has resulted from the exigencies of commerce. Until modern times it was the practice to employ a notary to draw up charter parties. The minutes of the contract were prepared by the broker representing the shipowner and the formal charter party was almost invariably drawn up by a notary.3 But
125 Henry VIII. c. 21.
41 Geo. III. c. 79: 3 & 4 Will. IV. c. 70: 6 & 7 Vict. c. 90. Master of the Faculties also exercises disciplinary powers, and is the proper authority to deal with cases of professional misconduct and to strike an offender off the roll of notaries. If a notary is also a solicitor, and has been struck off the roll of solicitors for misconduct, this is prima facie a ground for his removal from the roll of notaries. Re Champion  P. 86.
Per Lord Tenterden, C.J. in R. v. Scriveners Company (1830) 10 B. & C. at p. 519.