CHAPTER XI. FORMS OF BILLS OF EXCHANGE IN THE FRENCH, GERMAN, DUTCH, ITALIAN, SPANISH, PORTUGUESE, SWEDISH AND DANISH LANGUAGES, A SUMMARY OF THE LAW OF BILLS OF EXCHANGE, PROMISSORY NOTES, &c., WITH REFERENCES TO AMERICAN DECISIONS. BY BERNARD ROELKER, A. M., OF THE Boston Bar. On the Origin and the Functions of Notaries Public. THE origin of that class of public officers now called Notaries Public may be traced as far back as the ancient Roman Republic, although their functions now are different. We find, at the time of the Republic, scribe and librarii, who were public secretaries. The private secretaries were called exceptores, and also notarii, if they were shorthand writers, which service was frequently performed by slaves. The public secretaries were those whom the authorities of state appointed and paid, to assist them in their duties of office, and they appear to have corresponded to our present actuaries and secretaries. It does not appear, however, that legal documents were drawn up by public functionaries, resembling our notaries public. During the Empire, the public secretaries increased both in number and importance. They appear to have been secretaries, working in the cabinet of the Emperor, in distinct departments, and they had an overseer, called magister scri niorum. Distinct, however, from these persons were those who may be compared to our present Notaries Public, and who were called tabelliones. It seems that what even at the present day may be seen in Italian cities was already customary in the early days of ancient Rome; namely, that in the public market-place or forum scribes offered their services to persons who wanted to have letters written or documents drawn up. This class of persons were called tabelliones forenses, or personæ publica. They occupied themselves with drawing up legal instruments and documents, and other writings (libelli) or statements, to be presented to the courts of law, or other authorities of state. It appears from a "Constitution" of Diocletian, that a tariff of fees was established for them. The number of tabelliones constantly increased. They then formed themselves into a guild or corporation (schola), under a presiding officer called primicerius. The state authorities began, more and more, to exercise surveillance over them, which even went so far that the magistrates determined whether a person should be admitted into, or an unworthy person be removed from, this guild of tabelliones. These persons prepared all kinds of legal documents and papers, but they still carried on their business in the public market-place. It was soon found necessary, for judicial purposes, to define by law what should be the requisites of such notarial acts and writings, to make them legal evidence. It had become a usage, in important matters, to have witnesses also attest the papers drawn up by these public scribes or tabelliones, and it was finally required by law, that three witnesses should attest a document, in case the principals could write, and five witnesses, if the parties could not write. It was moreover required, that the notary (tabellio) should be present in person, at the drawing up of the document, and also affix his signature and the date of execution. During the Empire, another class of officers, called tabularii, came up in the cities. Their functions resembled somewhat our archivaries and auditors. They also made out certain documents, and these bore sometimes the names both of a tabellio and a tabularius; but at a later period both names are used as synonymous. Under the Frankish kings Roman institutions were imitated. In the imperial bureaux, the emperors needed and employed persons for drawing up documents and countersigning them. These officers were called referendarii, cancellarii, and notarii. The chief of these officers was called archinotarius or summus notarius, but at a later period cancellarius, as a more honorable title. The Frankish kings, as early as the year 803, appointed these officers, and issued laws to prevent the abuse of their power. It became later the sole prerogative of the kings to appoint these notaries; but by degrees the Popes of Rome also assumed the same right; and we find in documents notaries named who were appointed by princes and bishops, and even by cloisters. The legal powers of notaries, during the Middle Ages, and their condition, as a distinct class of officers, are distinctly seen in the Italian cities. They acted either by authority of the Emperor, or that of the Pope, and were engaged for drawing all the various legal documents, and especially last wills and testaments, which were received in all the courts of law as full proof. They were formed into a guild, called collegium, and had their own prefects, called consules. A candidate for admission into this college had to undergo an examination. Minute and strict rules for the drawing up of instruments, and their attestation, were prescribed. The study of notarial functions was reduced to rules, and notarial schools were established in many cities. Notaries came to be regarded, at an early period, as a kind of judges (judex chartularius), and a practice grew up among them of inserting in bonds, or other documents of indebtedness, a power for the creditor of taking out execution, by application to the court, in case of non-fulfilment of the contract, which laid the foundation of the so-called “ executory process," which prevails still in the Civil Law countries, and which corresponds somewhat to the warrant of attorney to confess judgment in the English law. We shall see, that the foreign law on bills of exchange on the Continent of Europe gives this right of "executory process to the creditor of these mercantile instruments, and thus strengthens the security of the creditor. In France the notaries have always played an important part in her judicial institutions, and they do so still. The king regarded it as his prerogative to appoint them, but the Popes also arrogated this power, and the lords of provinces (seigneurs) assumed it likewise. They were regarded there as juge ordinaire, and inserted in their documents this executory power or summary execution (execution parée). The basis of the present rights and duties of notaries in France was laid by the law of 1791, which recognized no longer any royal notaries, but only notaries public, appointed by the general government. The law of the 11th year of the Republic recognized them as public officers, appointed for the purpose of drawing up all papers and contracts which, either according to express laws or the will of parties, are to have the effect of public documents, and of fixing the dates thereof, of holding in safe keeping these acts, and of making out copies of them for the use of the parties concerned. All documents made out in the presence of two notaries, or of one notary and two witnesses, and attested by them, re⚫ceive full credence in all the courts of law, and are executory throughout the land. The original (minute) of the act remains in the hands of the notary, and copies are allowed to be given only to the interested parties, unless specially empowered by the courts. The law points out many cases in which the presence of a notary and his attestation of instruments are essential; e. g., with testaments, donations, marriage contracts, protests, &c. In most cases it is left to the choice of parties to employ a notary in the making out of instruments and documents. But the courts often appoint them, to undertake the part of mediator in some judicial proceedings; for instance, in cases of divorce, or in making out inventories, or in dividing and distributing property and estates, or in taking and making up accounts, like the Masters in Chancery in English law. The notaries are appointed for life, and can be removed only by a judicial decision. By their official position, they become the advisers in families and the confidants of them. They become the mediators in disputes between the parties, and particularly in regulating and settling estates, and in the distribution of property. The law of the 7th year of the Republic requires that all acts and documents made out by notaries be registered within ten days, the fees for which are very high. Hence it often happens, that the notary must advance the money for the registration, and this obliges him to have sums of money always at his disposal. Thus notaries have gradually come to deal in money affairs in general, by loaning and investing money, and procuring money for borrowers. Hence it is, that persons of property intrust their money and property to the hands of notaries, as being the fittest persons to invest it safely and advantageously. The great influence which they thereby must acquire, in families and in all classes of society, is manifest; and this great power could not but lead to great abuses. An ordinance of 1843 prohibited notaries, under heavy |