WE have endeavoured to trace the office of the Notary
from the earliest time records are available until the end
of the sixth century. Shortly thereafter occurred a period
pf " darkness " until the revival of law with _ the school at
Bologna in the eleventh century.' From the thirteenth
to the sixteenth centuries the "glossators" and their
successors flourished and laid the foundations of a more
complete revival of Roman law. In this period the notarius
-the equivalent of the earlier tabellio- carried through the
functions laid down by Justinian with addenda necessitated
by the growth of international trade. Indeed a major
part of the office of the notarius lay in certifying documents relative to the "law merchant."
In the sixteenth century the science of theoretical law
passed to France, where in 1550 we find Cujas at the head
of Roman law teaching at Bourges.2 In the seventeenth and eighteenth centuries the centre of Roman law
teaching lay in France and the Netherlands, Leyden and
Utrecht (where many Scots jurists studied) competing for
distinction with Bourges and Toulouse, until the sway of
influence again reverted to France with the juristic omnipotence of Pothier. Finally, the most notable figure of
pre- moderns was Savigny in Germany, who has so frequently been quoted as an authority in these pages.
Reference also might possibly be made to Heineccius,
whose influence in Germany in the eighteenth century
was outstanding.
From the middle of the eighth till the end of the
thirteenth centuries it is definite that one uniform legal
system prevailed in Ravenna, Rome and Naples.' So far
as our special subject is concerned, tabellio retained its
original meaning -in effect more as a profession and a
business than as a public office. Savigny tells us 2 that " the
old corporate constitution of the Tabellions had survived
without any interruption, and the Prototabellio,3 occasionally mentioned, is the president of this incorporation, and
the same person with the Primicerius 3 of preceding times
or with the Major 3 of the thirteenth century.
Notarius was still, as in the earlier centuries, peculiar
to certain officers in the Chancery of the Church of
Ravenna, who might also be tabellions.4 This distinction,
however, gradually disappeared and notarius became the
general term as among the Lombards.5 This notarius is the direct forerunner of the notary in Scots, English and
French law. " The old exceptor," continues Savigny,
"often occurs under that or similar designations." J. There seems little doubt that the office of Notary retained practically all its Justinianian features in the "Dark
Ages " of law until we are able to resume more detailed
information from the jurists of the Bologna school and
their successors.
A comparison of Roman notarial instruments with the
earlier Scots notarial instruments (of which one, dated
1500, of Alexr. Myln, subsequently 'a President of the
Court of Session, is reproduced as a frontispiece to this
thesis), shews that the intrinsic features of the former are
reproduced in the latter.3 This is a subject for examination beyond the scope of this thesis, but sufficient has been
said to substantiate a direct link of Civil law with the
early law of Scotland in a most important sphere.
Finally, reference should here be made to Dr. Maitland
Thomson's erudite work on The Public Records of Scotland,
and in particular to his account of the Notary, which
should prove invaluable for continuation of this study.
