History of the Notary

Now, in any case, both to appropriately shape the business

legal as well as to record the facts, all of this in a type of document
endowed with public faith, it becomes essential to have asystemnormative
that regulates solemnities and verifications, which belongs to the domains of
Formal law, an extra-judicial formal law, from there the origin of law
Notarial.
Notarial Law emerges in such a definitive way, contributing to the
progress of Private Law, regarding this the French civilists Colín and
Capitant claims that this is "one of the most useful of theinstlegal
and of the economic life of the majority of countries.
The Notary is traditionally assigned two duties performed with
a diligence that has been the reason for his prestige; one to verify the reality of
the facts, and the other, legitimize the legal business, leaving all of this accredited
in the notarized document, characteristic and irreducible species.
TheprocessThe evolution of the Notary is the same as that of the public instrument.
In the beginning was the document. We must not forget it. The document created the
Notary, even if today the Notary makes the document,professorNúñez
Lagos.
This has been happening historically as speculation
legal, initiated by the schools of glosators and post-glosators, elaborates the
scientific concepts of a new Law —that this has been the Law
Common or Intermediate with respect to Roman Law - and with whose contribution was

developing a coherent doctrine of the public instrument that prefigures and

clears itfunctionof the Notary, a term derived from 'to notarize', that is, in
medieval Germanic sentence, who writes or puts into writing. In the
presentwork, we will make a brief tour of thehistoryof so much
important right in the legal life of the whole world.
Reason for the existence of Notarial Law and its sociological foundation.
The establishment of facts and the social need for their perpetuation, established

from the most remotegroupssocial elements constitute the embryonic elements

where the very origin of the notarial function should be sought, or if you prefer,
notarial deed. So much so that, assuming any of said groups
completely fasting from all organs for that purpose, it creates it spontaneously
and immediately, to satisfy that constant need.
The legal historians specializing in notarial law do not exhaust their passionate search for

discover, in thesocial groupsolder, the organ where it could be

present, active, and fruitful, the function. The infinite range of relationships
socials has created a series of uses and controls that act within
of thegroupsetting the different onesfunctionswhat they required for their process

oforganization.
Thus, primitive groups, engaged in the practice of ritual forms, must have felt
the need to perform some acts called solemn or formal to perpetuate, in
such a way, some fact considered significant by the group. To find
some vestige of what could be called, at the time, notarial function, in the most
archaic social groupings, we will have to work with elements of our own
thesociologyand ethnology. It should not be forgotten that social facts
Repeated and sensitive, they have been the most favorable in demanding regulation.
legal.
In any case, whatever the antiquity of the group, the perpetuation
of certain facts should constitute an imperative need to transmit them as
leave them evident proof.
It is in the history of thebehaviorsocial ofmanwhere they must be searched
the earliest forms of the notarial function. To search for historical elements of
otherssciencesFichter has pointed out that the scientific study of
human behavior.
In certain private relationships, they would intervene at times 'with their advice.

yauthorityto the chief or the assembly of the gentility; but by this conjecture, only
abstractly we could separate or differentiate in the
very simplebiologylegal framework of that time, something essentially resembling the
notarial function of our days.
2. History of Notarial Law: Ancient Age,Egypt,
Babylon,India, Greece, Rome, Byzantine Empire, Middle Ages andUniversityof
BolognaSpainand New Spain: The Colony.
Thedevelopmentthe history of the notarial institution offers, in all times,
comparative situations of sumointerest.
The notarial institution was not unknown in Cartago. This is evidenced by

thetexttransmitted by Polibio, of the treaty made with Rome in the year 509
before Christ, with the clause for those who were to
to carry outoperationsmerchants in the Carthaginian territory could not
concludecontractsome without the intervention of the notary.
The history of Egypt -Pondé asserts- "singularly attracts notaries in the
Concerning the ancestral origins that their profession may have.
existence of a character with very marked features as transcendent
importance within thesocietyEgyptian, to whom, precisely because of valuation
phonetic, it is read as ancestor of the notary: it is the scribe.
The social and religious organization of Egypt made its scribes notable figures.
of real intellectual importance within that administrative machinery.
On the other hand, there was the scribe united to the divinity of Thoth.strengthcreator
fromthoughtUnited with the deity, it is explained that its role in the War
companion with that of his protector and who was a scholar in
hieroglyphicsgeographyfacosmographer and chorographer.
In ancient Egyptian history, two classes were recognized.documents, the
"homemade" and the "of the scribe and testgo", the first between 3100 and 177 B.C.
second in 1573 and 712 B.C.
At homepersonit simply incurred an obligation to do,
as it was almost always the transmission of thepropertyof an object, what is
It was done with three witnesses and the signature of a senior official. In the case

known as 'scribe and testimony document', it was a statement of

person, the one that the scribe signed and in such a way that it was almost impossible the

that could alter the papyrus on which the Egyptians were true
masters when recording them. This document "awakens curiosity in that,
Indeed, it could describe a predecessor of the notary.
In Babylon, civil activity such as religious demonstrations.
they were intimately connected, and theadministrationofjuicethellothey teach the
judges with the collaboration of the scribes. It is well known thatCodeof Hammurabi;

engraved stone found during excavations in the city of Susa. This

The code contains a lot of content of a civil legal nature.
administrative and procedural. But what is interesting about it is the importance it gives to
to the testgo. It seemed that every contract or agreement should be made in the presence

of testers.
The Code of Hammurabi is a point of interest regarding the ways
documentaries that are beginning to reveal themselves as written texts,
but in those where testimonial evidence predominates, in addition to the influences of

the natural forces and the fortuitous intervention of external factors to the
human understanding.
In Indian towns, the legal and religious aspects are also closely related, and their
regulation in antiquity was enshrined by the famousLawsof
Manu,translationpopular of Manava-Dharma-Sastra.
Also in this set of rules, the testgo appears as the form
fundamental and classical of proof along with the document.

Within the social organization of the Hebrews, there were various classes of scribes:
the king's scribe, who authenticated all important acts of activity
monarchic. The scribe of the people, drafter of pacts and agreements between the
particulars. The scribe ofState, of judicial functions and as secretary of
Council of State. And the most important of all, the scribe oflawand what,
Indeed, he was held in high authority and influence, given hismissionof
interpret the law. Only they interpreted the law, and they did not admit but the
explanations expressed by them. They believed they were the custodians of the
truth contained in the law. This fact "brings a new explanatory element
of the clash that inevitably would occur between the Pharisees and
Jesus, in the ideological plane, since theinterpretationof the law made by
Jesus Christ did not coincide with the classical interpretation made by the Pharisees.
In Rome, there was a number of people who drafted documents, and according to

Fernández Casado, were known as Notarii. scribal, tabelione, tabularii.

chartularii, actuari, librrari, amanuenses, logrographi, refrandarii, cancelarii,
census diastoleos, numers, scriniaries, comiculators, exceptors,
epistolary, advisory, cognizant.
While it is true that many notaries see this great range of characters,
the predecessors of the current notary, it is necessary, however, to analyze the criterion,

well, with such breadth -Pondé claims- 'we would reach the absurd extreme of
to mean that anyone who knew how to write and was able to draft a
document at the request of a third party has been predecessor of the notary.

Of aanalysismethodological of thenaturefrom the activity carried out by such

officials, it is concluded that in Rome four officials are
those who can truly be cited with genuine prior notice from the notary. They are
the scribe, the notary, the tabulator, and the tabelion.
He wrote functions of document custodian and drafted decrees and
mandates of the praetor.

The notary was that official who transferred to thewritingthe interventions

oral statements of a third party and I had to do it with accuracy and urgency.

The tabulator was the official responsible for making the lists of those Romans subject to

payment oftax.

The notary had the purpose of drafting legal documents and agreements between the
particulars.
Eduardo Durando, -quoted by Pondé-, points out that the habit of resorting to social media

the census to draft legal documents, and then archive them, caused work
excessive for this, which led to the emergence of specialists
inwritingof deeds and wills, giving it the legal formula.
In summary, "the special condition of acting in private business, of having a
purely specific intervention, completed by your writing ability;
theknowledgeof the right that allows them to act as advisers
legal, and the possibility that it would seek the effective conservation of the

documents, make the 'tabelion', who, with more

legitimaterightscould be considered a predecessor of the notary within the
characterizing interpretation of the notary detp latno.
3. Notarial Regulations.
The development of legal thought in Rome, in its different eras, was
intense and fruitful, and this had to lead to the various attempts at compilation
legislation, such as the Gregorian Code, the Hermogenian Code, the
compilation of Theodosius II or Theodosian Code, and the most important of all,
that of Justinian Augustus (527-565), who once he had unified all the
Italic territories, began its extraordinary legal compilation work. Its
work ofcodingcomprises four parts: the Code, the Digest or
Pandects, the institutions and theNovels.
In the novels (novellas), there are well-defined groups of regulatory norms.
from the activity of the 'tabelión', as well as the documentary requirements. The novels

Regulators of the Roman notary are the XUV, XLIVII, LXXM and according to
Pondé displays acharacterdescriptive. For example, the first chapter places
the activity in places called "plaza", requiring that the notary be present
present from the beginning to the end of the document.
The presence of the notary was indispensable to the point that his absence was
sanctioned with the loss of the "position" or "status".
Thereadingthe document required several moments or phases, which can be
summarize like this:

a. The parties would go to the Notary and impose the desire to carry out a
legal business or contract. It was the 'request,' which was generally present
in charge of subordinates called "ministers";
b. The second moment was constituted by the "speda", a kind ofprojectwhat is
I was reading to the panels, for the purposes of their approval correction, a stage known

like 'initum';
c. Once the content of the 'Speda' was approved, it was finalized for the
they would sign or subscribe to them; this was done on parchment sheets and
they knew it as 'protocolum';
d. Once the esCTÍnira in the 'protocolum' was completed, the authorization from
from the Tabelión, known as 'complete'.
These Justinian regulations of the Roman notary warn of the emergence.
ofprinciplesstrictly adhering to the rules of notaries. The preface
ofthe novelXLIV and also chapter I mention 'the commission' or 'the
commission the drafting of a document, from where, in general, the authors
they continue, which was the formation of a petition for appeal, the appeal as a principle

basic of the notarization exercise.

These novels, in short, offered a detailed regulation alongside caring in
where they performed all the activities of the Roman Tabelion. Arrangement that by another

part, in addition to grantingsecurityand certainty the act could serve as

basis for the legal technical advancement ofsciencenotarial, not only in the
Chinese empire in its further development.
There is no doubt about the advances and legal technicalities of the Notary, which these

to speak of Don José María Sanahuja, it is a Treatise on Notarial Law (Chapter

At first, they did not have any official character, but the trust that
they were inspired by their expertise, as well as by the intervention of the witnesses in the

documents that were drafted and the formalities that were observed in them,
I challenge the documents of sufficient guarantees, to the extent of arriving
to be considered PUBLIC INSTRUMENTS. On the other hand, it is worth noting
that although the Notary can be considered at first as a man of
lower social condition, but educated, has just conquered, due to his skill
ymoralitya high social status.
The great work of Justinian constituted a technical element of importance in the
development of legal thinking; and regarding its subsequent influence of
It is well known that Justinian law, after overcoming not a few
obstacles, extended its beneficial influence throughoutEurope, including the
Iberian Peninsula and, of course, with more truth, the fields where we
they had established the Frankish and Roman-Germanic empires. This influence
it holds special relevance in thesubjectnotarial; hence why the system,
today well known as 'latno system' of the notary, it will be wide not
not only in Ibero-American Spain, but also includes countries likeGermany,
Holland, Austria and even sections of TheUnited States(Louisiana) and
Canada (Province of Quebec), not to mention regions so distant in the
space and its historical formation, as is the case with theJapan.
The work of Justinianmarcor footprint and course in the subsequent works of
legislative compilation, such is the case of theConsttuitionof León VI the Philosopher
(Novel 115), also known as the Sage. These laws were the translation
to the Greek of the novels of Justinian and they represented mainly the effort
organization of the Trade Corporations which were preceded by the
tabularii. And it is important, moreover, because it contained a series of demands.
required from the person of the Notary, who was supposed to have many virtues and great

wisdom. They were sixtybookthe one that regulated notarial matters was known as
like the book of Leparca or the book of the Prefect.

If fertile was the development of legal thought in Rome, to the point that
the law is an essential element of civilization, it was crumbled before the
invasion of the barbarians, the fall of their institutions and the rise of new ones
socio-realities-polecaseNew events of various kinds were made that
they came to an agreement and that constituted a new legal interpretation.

The first invading and violent people were the Visigoths. They arrived in Rome and continued.

to the south, they spread to the south, they spread throughFranceand then they occupied the

Iberian Peninsula, establishing the Visigothic kingdom. To the south, in the region
Vandals had already arrived in Andalusia, who advanced northward.
ofAfrica.
In Germany, and at the samettime, movements arose from the towns of the north to
on, invasion that reached the Italian peninsula, where they settled in today's
Lombardy, named after the settlement of the Lombards.
Themovementfrom these towns, the emergence of new realities is
important from the point of view of notary, because it reveals how
in the northern region ofItalya succession and a was occurring
consequentfusionof towns that would later shape a legal melting pot.
Historical events caused the city of Bologna to experience, more
that no city in Northern Italy, the impacts of all those
socio-political movements.
At the University of Bologna, a group of notable jurists was formed.
commentators on legal texts and thus called glossators. It was
in Bologna, and thanks to its notable exegetes, where was born theteachingpublic
artfrom the Notary,
Ramiero of Perugia (Irmerio Ramieri Di Perugia), was a great glossator (1050-
founder of theschoolBologna Law. Professor of Notary Arts.
His work Summa ars notarial presents the interpretation of Roman laws,
Longobards and their own. The exercise of the Notary was regarded as an art and
As Escobar De La Riva states, it is not surprising that the first
manifestations of atheorynotarial responded to the idea of art, since
this must have been before thescience.
Ranier's work, Summa ars notarial, is methodologically divided as follows,
where it exposes the general principles of pragmatic theory concerning the function of

Notary, and a party that is the conditions of the notary, of the knowledge of the
laws and capacity to capture the business that the parties have subjected to it.

It is noteworthy the interpretations given regarding the conception of Notary as

art. Some see it as a term that is somewhat inappropriate in the sense that the function

Notarial can more properly be regarded as one of the many branches.

of the science of law. But at that moment the word art, as
calibrator of thedisciplinelegal or intellectual, had significant rank.
On the other hand, all sciences - said FaIguera - have a practical application.
resulting in stable and homogeneous works through exercise
continued that constitutes an office, a profession, the way of living of a
person, they are arts, without thereby ceasing to be sciences. Straight Rato, of works

The ancients called the art of doing things Faciendo rerum, and we
we still say that it is the set of precepts and rules for doing something well
what in such a way that the basis of art is the continuous facts in which
execution applies the theoretical rules.
But it is worth asking: What was the foundation of notarial art? Don José
Córnes, Ecclesiastical Notary of the Vich Curia in the 12th century in his work
"The Theoretical-Practical Ecclesiastical Treaty of Notary Art" states that "everything the

The art or science of the Notary revolves around three things:contractslast

wills and judgments. Its formation of instruments -he adds- is not a part
separate, but common and inherent to these three, and their consequences.
In the years of the validity of the cultures of notarial science in Bologna and very
after him, the doctrine developed quite a bit that
onmethodologyexpository will insist on the three aspects of notarial art:
theoretical, practical and art. Among many authors, Vicent Gibert defined theory
of the art of Notary as "the investmenttnavigationwhat encompasses the nature of the
people, things, and businesses that are managed lawfully by men and are
they transmit to posterity"; and defines the practice as "the act or exercise
corresponding to a design of theory, and the art "that teaches how
foundation to authentically draft the legitimate businesses of men.
Like Ranieri of Perugia, the founder of the Notarial School of Bologna, two
Personalities of the legal-notarial science stand out in Bologna. They are:
Rolandino and Salotel.
Rolandino Pasaggieri, also known as Rodolfo, was undoubtedly the
most eminent maestro of the Bolinia school; notary and politician, influenced by
large way in thepolicetca from the time it derived satisfactions and
bitterness.
His works related to art or notarial science are as follows:
a. Summary of Notarial Art.

b. Flowers of testaments or the last wills

c. Tractatus Notulamm
d. Aurora
e. Of the office of the notary in villages or castles.

The work ralandino consists of four parts: the first of contracts in

general, of themarriagethe second about last will acts; the

third, we talk about theprocessesjudicial and the latest on the making of the
writings and their respective copies.
Falguera, scholar and analyst of Rolandino's work, assigns to the tractus
notary, a maximum importance, since there appears the notarial conceived
as an autonomous science with its own rules and special principles.
Another great forger of notarial science was Master Salotel, also from the
Bologna school, and its efforts entail aqualityscientific. His work
maximum called it Ars Notarial, whoseexhibitionDoctrine is made up of
fourbooksaboutcivil law, and the last offormsIt must be mentioned
his prologue, where he talks about the condition of notaries, their capacity, their
suitable for the position, of moral conditions, ethical principles, and good
customs, "man of sound mind, seer and hearer and constituted in integrity
fame and have full knowledge of notarial or tabular art; and defines the
notary who "exercises the public office and whose faith is publicly today
recurs in order to write and reduce to public form, for your
perpetualmemoryeverything that men do.
In all the exhibitions of Salotel, the "notary profession consists of drafting.
of contracts or acts of last will and also in all those matters
which are linked to the trials, a situation explainable since at that time not
the distinguishing delimitation between strictly
notarial and judicial, that is to say, that the judicial faith and the
notarial deed
Science and notarial activity were the most eloquent expression of
theculturelegal in Bologna. There, the development of the science of law
notarial, was, without a doubt, splendid. The notarial sparkle of Bologna gave to
universal culture first in such intellectual of the glossators, and
then, the scientific quality of the commentators and post-glossators. Thus it was from

the legal work of Bologna and its masters "formed a legal crucible
that in the future it would radiate its lights to many of the European nations of the

current events.
The influence of the notarial studies of the masters of Bologna was
truly positive to the neighboring nations, in which a
series of regulatory standards for notarial activity. Thus, the case of
Piedmont through the famous statute of Peter II in the year 1265. It contains two
fundamental aspects: the foundation of the document deposit (cartulary),
where the abbreviations were stored (archived) for a moment
data could be cross-checked. The origin ofprotocols. And consecrate, by
another part, a question that has been an inherent characteristic of notarial practice in its

tariff reimbursement system. It is important to emphasize this form of

payment of fees by tariff, confirmation on the other hand, of norms
predecessors, because it comes to establish the historical lineage of the regime
tariff in contrast to the payment of asalarythe salary." And this way of
emoluments has been so specific in thesystemsnotarial, that the "salary
it does not appear in the notarial history, but as a diversion from declining periods.

The so-called 'Green Conte' statute of Amadeo VI was clearly one of a

great importance. It is in 1379, where through this body of legal norms
Regarding notarial matters, the distinction between judicial faith and faith is made for the first time.

notarial.
This is Amadeus VIII, who was elevated to the papacy with the name Felix V,
the enactment of a statute called 'Of Notaries and'
"Notary", in which a certain order that the notary must follow is established.
the drafting of the document. It is the definitive establishment of theProtocol.

By virtue of the studies of Bologna, the notarial document constituted in

theMiddle Ages, true perfection not only in its writing, faithful interpreter of
wanting from the parties, but above all in their legal forms.
From there, the public document emerged in itsconceptphilosophical and doctrinal
as an expression of the truth, of the certainty of its content and of its seriousness
as if emanated from the hand of a public person, ultimately, as something that would not leave

doubts about its clarity in its practical consequences. We find it accurate the
concept of Pedro Boaterio, in which "publicly and authentically notarizing is to make

by the public hand of the notary, because no other hand is considered public than
the notary's, or also that the publications make the instrument
public worthy of faith.
Regarding the development of French notarial services, it is noted that organization and

progress begins in the year 1270, and from the famous revolutions,
known as 'San Luis establishments', regulating the activities
of the notaries. They could not exceed sixty in the city of Paris, and they had to
to be all gathered in a single headquarters or building, in the Grand Chaletec, place

where the Provost of the city exercised functions.

It is worth noting that 'the notaries of Paris did not authorize the document by themselves,'

neither in the name of the Provost, nor did they stamp his sealpersonalbut that of the one over there, it

that it is not a very satisfactory index regarding the autonomy of the notary in that
era.
However, the work of King Saint Louis must be sought in organizational intent.
of printing to the nascent notarial activity.
A reform, this time imbued with notarial technique, was that of Philip IV, known
like the Beautiful. Notaries were granted the authority to authorize documents,
Print your own seal, and the way to carry the documents was indicated.
With all the French notarial progress, for the time, it did not have the sign of
greatness, development, and intellectual culture of Bologna.

In Spain theevolutionthe notarial activity had certain characteristics that

they are marked by peculiar and progressive elements. The provincial privileges, the

equal and individualistic sentence, the relationships between the Monarch and the lords
feudal, gave the Spanish social life a profound legal content and
political. With such legal standing, the legal regulations reached a great
casuistry, and thus the notarial act could not escape. During the
Gothic denomination in Spain, according to Fernández Casado, was already glimpsed the

notary public.
According to Saint Ildefonso in his book of Illustrious Men, Saint Eladio in the 7th century was

notary of the Kings Sisebuto, Serintla, and Sisenando.

Moreover, and this is very important for notarial development, the Spanish provinces
they had, emanating from them, their own legal framework. Different was the
lawSpanishto Aragonese and to Catalan.
It is in the city of Valencia where the notariat acquires splendor and prominence.
progress; advances and developments comparable to those of Bologna itself.
The notary candidate was receiving direct instruction from another notary.
with whom I shared the chores for years, receiving instructions and
applying them. This closeness between the teacher and disciple reached the degree of
share not only professional chores, but also your table,
to capture the gestures of the teacher, theacttudesand the positions
correct, culminating in the need for certain stages of the
teaching had to be fulfilled by living in the notary's own house established
in his master.
Similarmethodpedagogical should have built an exemplary and effective lesson, in the
that the teacher is exhausted in the disciple.

In addition to this teaching that lasted several years, the aspirant had to

submit to a rigorous examination, with a jury composed of people well-versed in the

matter and two notaries and "jurists of the noble lineage of the wise."
It was a strict organization and the notaries were known as
Distinguished school, and its leaders were called foremen.
In the history of notariesSpanishthere was a series of legal bodies, whose
influence in legal and notarial matters was truly transcendent in its
historical development.