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‚Äč‚ÄčNOTARIAL RECORDS

THE HISTORY OF NOTARIES IN SPAIN AND HER COLONIES

 

Figure 7-2.pngThe history of Spain's notaries extends backward into the Roman origins of Spanish civilization and the work of the tabelliones, government designated drafters of private documents.  In sixth-century Visigothic Spain the writers and validators of legal documents were known as comes notarium, lector scriba or notarius.[1]  For more about the Roman origins and latin formats of Notarial recods click here.

By the thirteenth century, publication of such fundamental documents in the Spanish legal system as the Fuero Real and the Siete Partidas clearly formulated the role of notaries, or escribanos publicos as they were by that time known.  Partida III, titulo XIX, ley IX of the Siete Partidos reads in part:

Los Escribanos Públicos de las Ciudades et de las Villas deben haber un libro por registro en que escriben las notas de todas las cartas . . . et despues desto deben facer las Cartas guardano la Forma de Cada una de Ellas. (The public notaries of the cities must keep a register book in which they take notes about all documents . . . and after this they must make the documents, keeping a copy of each of them).

By the end of the Middle Ages, four separate classes of notaries had developed:

  1. Escribanos públicos o de número (Public Notaries).  Formalized transactions and drafted documentation for private legal activites, preserving the drafted and signed documents in permanent register books, or protocolos.
  2. Escribanos reales (Royal Notaries). Served the crown and various governmental councils.  Their specialized function was limited to preparation and formalization of the documents that proceeded from the King, and his councils and advisors.
  3. Escribanos eclesiásticos y apostólicos (Ecclesiastical and Apostolic Notaries). Were limited in their activities to canonical affairs; however, the wide breadth of involvement of the Catholic Church in every level of Spanish life gave them a varied and diversified practice. Working as part of the diocese, or of a large cathedral chapter, they provided all the varied documentation necessary for diocesan activity, including taking testimony in marriage dispensation cases; and drafted testaments and other legal documents and contracts.[2] Documents drawn up by the escribanos de numero primarily by the seal at the head of the page, which in the case of the ecclesiastical notary was a pair of keys with a motto in Latin, and with public notaries was in the form of a small cross.
  4. Escribanos de provincia o del criminal (Provincial or Criminal Notaries). servied as appendages to the various courts performing administrative and judicial functions in both criminal and civil matters.

 

The Notarial system in the Spanish Colonies

  1. Not surprisingly, the notarial system of preparing, authenticating and preserving the multitudinous legal transactions of Spanish society transferred immediately to the American colonies. Hernán Cortes himself served as a public notary in Spain, and later in the town of Azua de Compostela on Hispaniola.[3] As the New Spain colonization spread, crown-appointed notaries served in major cities such as Puebla, Mexico City and Guadalajara, where extant notarial records date back to the 1520s. As colonization moved into what is now the northern borderlands area, the system met new challenges on frontiers with sparse population and few formally trained notaries. Only during the eighteenth century were notaries appointed by the Crown to serve in frontier towns such as Saltillo, Mexico. In the years before and after those Crown appointments, non-appointed individuals such as comandantes (military commanders) and alcaldes(mayors) performed the functions of notaries by following templates provided by earlier documents. Although this process revealed both the efficiencies and inefficiencies of Crown notarial procedures and appointees on the northern New Spain frontier, it demonstrated that the notarial system exhibited great flexibility in meeting frontier needs while maintaining at least minimum standards of quality, authentication and preservation of documents essential to the proper functioning of notarial law and the legal system it supported.[4] The process of implementing the notarial system in other parts of the Spanish empire closely followed the patterns observed in New Spain.[5]Anyone interested in the notarial history of a particular Latin American country can begin with an online search at sites such as Google Books or Google Scholar or Internet Archives. for books or articles about notaries in that country.

The use of stamped paper

All documents drafted in Spain and her colonies from 1673 forward had to be drafted example drom the top of the page.pngon specially stamped paper, the cost of which varied depending on the type of document to be drafted. Only paper stamped with the particular year of issue could be used. Each year in early January, the notaries of Spain sent someone to the provincial capital with a power of attorney authorizing them to buy stamped paper for the year. Only in times of isolation from Madrid, i.e., during war or internal revolution, was paper from a preceding year used.  The use of paper without the current stamp is, in and of itself, indicative of an interesting but difficult period in a locality's history.

Stamped paper was sent from Spain to the Latin American colonies and was valid for a period of two years. In 1825, William Bennet Stevenson, an Englishman who had served as the private secretary to the President and Captain General of Quito, described the use of stamped paper at the end of the Spanish colonial period:

All judicial proceedings in the different courts of justice, civil, criminal, military and ecclesiastical; all agreements, testimonies, and public acts, were required to be on stamped paper, according to a royal order dated in 1638. It was stamped in Spain, bearing the date of the two years for which it was to serve, or was considered to be in force; after which term it was of no use. The surplus, if any, was cut through the stamp, and sold as waste paper, and the court took care to supply another stock for the two succeeding years. If the court neglected to do this, the old paper was restamped by order of the Viceroy, bearing a facsimile of his signature. There were four sorts of this paper, or rather paper of four prices. That on which deeds and titles were written, or permissions and pardons granted, cost six dollars the sheet; that used for contracts, wills, conveyances and other deeds drawn up before a notary, one dollar and a half; that on which everything concerning a course of law before the Viceroy or Audience was conducted, half a dollar; and for writings presented by soldiers, slaves, paupers and Indians[sic], the fourth class was used, and cost the sixteenth of a dollar each sheet. The first sheet of the class required in any memorial or document, according to the foregoing rules, was of that price, but the remainder, if more were wanted, might be of the fourth class or lowest price, or even of common writing paper.[6]

[1] José Bono Huertas, Historia del Derecho Notarial (Madrid: Junta de Decanos de los Colegios Notariales de España, 1979), tomo 1, 45-92. Enrique Gimenez-Arnau, Dercho Notarial Español (Pamplona: Universidad de Navarra, 1964), vol. 1, 69-74. Perez Fernandez del Castillo, Derecho Notarial, 1-3.

[2] For information on the appointments of ecclesiastical notaries, see Pilar Puerto Colomina, "Nombramientos de notarios por los arzobispos de la diocesis de Zaragoza (1346-1411)," Aragon en la Edad Media, XX (2008), 635-660. Maria Jose Olivares Tero, "Los Notarios de la Escribania y Audiencia  Episcopales de la Diocesis Cartaginense durante el siglo XVI;" http://www.regmurcia.com/docs/murgetana/N088/N088_006.pdf.

[3] Gimenez-Arnau, Dercho Notarial Español, 183-200.

[4] These comments are based on an unpublished study by this author of the extant notarial records of Saltillo, Mexico covering the years 1605 to 1820, during which officially appointed escribanos only functioned for a total of 85 years. Kathryn Burns explores similar challenges in the process of establishing the notarial system in colonial Peru in “Notaries, Truth, and Consequences,” The American Historical Review Vol. 110, Issue 2, lines 12 -21; at http://www.historycooperative.org/journals/ahr/110.2/burns.html.

[5] “For a discussion of the differences of between the use of native languages by notaries in the colonies of Peru and New Spain, see Igue, José Luis. La escritura de los idiomas indígenas en el Perú y México (II) athttp://ahorahistoria.blogspot.com/2008/09/la-escritura-de-los-idiomas-indgenas-en.html. “ 

[6] William Bennet Stevenson, A historical and descriptive narrative of twenty years' residence in South America: containing travels in Arauco, Chili, Peru, and Columbia, with an account of the revolution, its rise, progress, and results, 3 vols. (London: Hurst, Robinson & Co., 1825), 1: 197-198.

 

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