CHAPTER THREE
The Laws Shaping Notarial Pages
Was there something incongruous, even contradictory, about the way the notary straddled the boundary between personal gain and public duty, between profit and truth? In the medieval universe that had created him, the answer was no. The notary was like so many in that world who bore in their persons some small share of someone else’s authority, traced back, ultimately, to lord or king or emperor or pope. To his medieval contemporaries, the notary was similar to others, not unique. The figure of a man whose business was marketing public trust was not so different from that of a man who sold promises of pardon in the afterlife as to provoke undue concern.
Yet those same governments that had bolstered and benefited from this new type of public writer did find other aspects of his activity troubling, particularly in light of the ambiguous ruminations of the jurists. So they legislated, hoping to narrow the array of possibilities that the learned doctors had spread before them. Laws to shape, alter, improve, restrain, or otherwise influence not only who became a notary and how much he charged for his wares but also how he practiced his trade testify to their efforts. Imagining widely varying ways to police the artifacts of the notary’s pen, the Italian communes of the North and Center pioneered these statutes beginning in the 1200s.1 With a delay of a century or so, the city of Rome and its notarial college followed the same path.
Like the city-states, Italy’s medieval monarchies were also constructed of notarial parchment and did not forget their origins. The kings of Naples and Sicily were equally suspicious of the entrepreneurs of public trust and almost as free with their rules. By contrast, the popes, as deeply committed to parchment as any rulers, evinced little initial interest in regulating notarial activity. To be sure, the evidence is meager, and the political grip that might have generated it tenuous, especially in the fourteenth and early fifteenth centuries. City law and the profession’s own customs and rules governed Roman notarial practices while the popes were in Avignon and long after their return in 1420. Only gradually, as Renaissance pontiffs grew worried about the notaries serving their own institutional bureaucracy, did the papal government intervene in any significant way in the writing habits of the Roman notaries and their clients. Slowly at first, but with gathering purpose, the papacy in the sixteenth and seventeenth centuries muscled in on the documentary turf once supervised exclusively by the Roman municipality and the notarial college. By 1700 the popes had thoroughly reshaped the ways that records were made and kept not only by notaries serving the Curia but also by those, like the Capitoline notaries, who worked for the rest of their subjects.
The legislation aimed at the notary’s pages between the mid-1300s and the late 1600s illuminates how Rome’s changing and overlapping layers of government thought about documents and what that thinking meant for notaries. Admittedly, laws are an illusory form of evidence, purporting to describe what they can only in fact prescribe. The process by which a new regulation influenced actual contracts or judicial acts was slow, uneven, and marked by ongoing interpretation that bore it ever further from its port of embarkation.2 We have long been taught that law may be better evidence of the intentions of its authors than of the practices of its targets. On this account, legal sources are essential for reconstructing the concerns and wishes of those who had ultimate power over public writing in Rome. But the evidence of statutes is useful for other reasons, too.3 It alerts us to realities that we would miss if we depended only on chance archival remains for our picture of the Roman notary and his work, helping to balance, for instance, the unequal fates of his writing for private clients and that for the courts. Then, too, the letter of the law can reveal points of contact we might not otherwise discern in a context in which abstract juridical concepts tended to float above the documents on the ground. In the last analysis, however, what distinguishes notarial writing from all other kinds of writing, then and now, is precisely the way it is regarded by those in authority. To understand public writing, therefore, we must follow their gaze.
The rule makers, whether of the city, the profession, or the state, cared about the character of notaries and the fees they charged but fixated particularly on their papers. Over the course of three centuries municipal, guild, and papal laws sought to shape the material text by their dictates about the page, its container, the means of access to its contents, its reproduction, and the spaces in which it was located. This is not to deny the role of notaries in the confection of their acts for some regulations simply generalized existing working methods, and, as we have seen, the words on the page were largely left to them. Rather, it is to argue that legal and institutional pressures bore down on their texts in ways that affected the documents’ appearance, cost, and utility to consumers. Because they were hardly prepared to fund his services out of the public purse, Rome’s early modern rulers, first civic and then papal, tightened controls on the notary’s writing, while hoping that he would continue to profit from it. His ambiguous status straddling truth and enterprise suited their purposes perfectly.
Let us turn now to Rome in the year 1363, a community in control of its own destiny with muscular groups of local landowners, merchants, and artisans eager to suppress the barons, and the popes far away in southern France.4 As we saw in the preceding chapter, the moment did not last; by the 1390s the popes were again firmly dictating policy to their Roman subjects. While they held the power, however, the Romans of the fourteenth century did what the citizens of other free cities in Italy were long accustomed to doing. They wrote down the rules by which they would govern themselves, found the men and treasure that would make government effective, and spelled out the way justice would proceed in their territory. The most important evidence we have of their accomplishments is the Roman city statutes, whose influence over all subsequent local law far outlived the regime from which they issued. Commonly dated to 1363, the statutes are in fact a layered and composite text with fragments of earlier and later materials.5 Here we find mention of the two great classes of notarial writing, business acts or the contracts, wills, and dowry agreements made by fourteenth-century notaries for their private clients, and judicial acts, the records made by notaries for court proceedings, either civil litigation or criminal prosecutions. Because in this book we are following Rome’s city notaries, not the foreign notaries in the train of the senator who registered criminal proceedings, we are concerned only with the civil courts.6
Most of what survives in the Roman archives today, mainly from a later period, are examples of the first type of notarial document, business acts (atti negoziali), a fact that has led us to think of notaries’ writing almost exclusively in terms of contracts or public instruments. These are the rich sources that have captured the hearts of historians in many fields over the past century, and rightly so. But it was justice that was the main preoccupation of the city government in 1363 and of its statutes. Civil judicial procedure was the subject of the first of the statutes’ three volumes in 1363, criminal justice was the topic of the second, and everything else deemed necessary to urban self-government was lumped together in the last volume. The writing that notaries did for citizens seeking remedy in the civil courts, judicial acts (atti giudiziari), was equally if not more important to the legislators of 1363, and indeed to their successors in Rome, as were public instruments.7 It may well have been more significant to their clients, then and later. Those in authority always distinguished between judicial and business acts, though penned by the same notaries, and they are still separated in the Roman state archives today.8 Many fewer judicial acts remain.9 We may be reluctant to believe that public justice depended so heavily on private enterprise or, to put it another way, that brokers of public trust played such a prominent role in court proceedings. For all these reasons it is easy to miss the fact that the political authorities of medieval and early modern Rome thought of notaries first and foremost as operatives in the judicial system. Civil justice was the driver, and the motivation for regulating notarial writing usually arose in connection with legal reforms.
Yet we would be mistaken to draw too firm a boundary between these two dimensions of the notary’s activities. In both he wrote at the request of paying clients and to further their goals. In both he worked in a context richly informed by the jurists’ thought about evidence.10 Moreover, there were more substantial links between the two kinds of writing. For those who authored the 1363 statutes, civil justice was defined by whether creditors would be paid.11 The notary’s provision of evidence in the form of business acts dovetailed neatly with the judicial acts demanding, transferring, and acting on written documents that he also supplied. Nevertheless, both our habits and those of the legislators argue for treating the notary’s public instruments and his civil judicial records separately.
Business Acts
The City Statutes of 1363
Public instruments appear pervasively in the 1363 statutes’ articles on civil procedure. While the jurists had debated the relative merits of witnesses versus documents, the municipal regime of the fourteenth century could not imagine peacefully settling conflicts without the records authenticated by notaries. Thinking about litigation led the statute writers directly to writing, which they assumed would be produced, disputed, and proved or disproved in court. Public instruments were not the only type of written evidence favored by Rome’s city law. Scriptura privata in some forms, even unsigned personal receipts (apodixa), shared the same privileged status.12 But the statutes taught creditors that, if they were armed with notarial instruments, they would have the best chance of a favorable judgment and with it the right to throw their debtors in jail, confiscate their goods, and collect what they were owed.13 Having decisively registered its preferences, this legislation spoke in a selective and unsystematic way about business acts, aiming to strengthen them at those points where either the jurists or everyday life left them vulnerable.
Nothing made this plainer than their treatment of the crime of falsum. In sharp contrast to legal theorists, the statute writers provided Roman notaries with generous latitude to forget what they had heard or seen with their senses and to add or subtract it to a document at a later moment.14 Where the medieval commentators pointed out the possible flaws in notarial writing practices, Roman legislation weighed in to give them the benefit of the doubt. The statutes created a very high bar for accusations that notaries had falsified records. Plaintiffs had to prove clear malice behind the notary’s changes to a text and the litigant’s deliberate intention to exploit them to harm his adversary.15 Correcting or filling in what was missing or wrong in a public instrument was not, by this reading of city law, a notarial misdeed but rather a practice to be encouraged. Was the credibility of a document shaken by alterations, omissions, or additions in the hand of the notary? No, was the emphatic answer of Rome’s fourteenth-century governors, who threw their support behind notarial writing even when it erred.
Given these sympathies, it comes as no surprise that, when a notarial document was challenged in litigation, city law backed it very strongly. If a public instrument was produced as proof in a lawsuit and the adversary claimed under oath that it was suspicious (suspectum), the senator as chief magistrate should summon the notary who had made it and the party who had submitted it as evidence.16 To defend its credibility, the rogating notary had simply to show the judge the volume in which the imbreviatura entry for the instrument was recorded. The contrast with the treatment of scriptura privata was telling. Private receipts were certainly acceptable as evidence, but, if contested, the only way to prove their trustworthiness was by comparing the handwriting on the suspicious sheet.17 This method was prey to much greater uncertainty of interpretation and outcome.
Charges of forged or suspect evidence might easily arise in the fray of litigation, but the notary’s life cycle posed a threat of a different kind to his papers. Because they were his property, the volumes passed to his heirs. The Roman statutes did not specify, as laws in some places did, who could inherit notarial documents, but they did try in some fashion to protect their integrity and that of the copies made from them after the notary’s death.18 Inevitably that meant not merely prohibiting their destruction but restricting their commercial circulation as well: “No one may buy or sell the protocols of dead notaries, nor tear them up, nor hand them over to others, either freely or for a price, to tear up or put to any other illegal use.” In this, as in all articles of the statutes, the prime method of enforcement was fear of penalties. The senator, alerted either by open or secret denunciation, was authorized to proceed against anyone suspected of destroying notarial protocols and to levy harsh fines on those convicted.
Equally delicate was the problem of access to business acts when they were in the hands of the heirs but might be needed by clients. The Roman statutes set the rates that could be collected by the owners of notarial protocols for finding and showing an instrument by a deceased notary to someone who asked to see it.19 If the public copy of the instrument was also required, a “good and suitable” notary should be employed to extend it from the imbreviatura, within eight days, at a fee also fixed by the statutes. Although Rome’s laws called on the Capitoline court to supervise the process, they authorized the notarial college to designate a group of expert notaries from whom the judge should choose two to check “diligently” the copy or transunto thus produced.20 All three should sign it to guarantee its identity with the original agreement.21 The 1363 statutes were always sensitive to the possible uses of notarial documents in court, and therefore alert to the need for litigants to meet the deadlines for their suits despite the death of the rogating notary. If a litigant needed the copy in less than a week, the judge should set a shorter period for the hired notary to complete his work. If he did a poor job, the statutes, fully attending to ius commune in this instance, affirmed that “a person’s rights [ius] may not be lost because of a defect in the instrument.”22
City laws also defended business acts against notarial misdeeds. Once the statutes’ high threshold of proof was met, they punished the notary who made a false document (cartam) with a huge fine and loss of his right to practice; if he failed to pay the fine within ten days, he could lose his right hand.23 Knowingly producing a false instrument as evidence in court was subject to only slightly less severe fines. The statutes forbade more mundane deceptions as well. Contracts or wills might be superseded or rendered null for many reasons, and when that happened, they were usually crossed out (cancellare), with a large x, but retained in the notary’s volumes. Notaries were not allowed to strike out any instrument in their volumes, unless so ordered by the party who had undertaken the transaction in the first place.24 In addition, the city upheld the legal force of notarial instruments made prior to the moment in which a notary, or one of the witnesses to his instrument, was formally challenged (diffidatus), though not afterward.25
Yet the municipal government sometimes imagined good reasons to destroy business acts. Its statutes reflected the fundamental Roman law principles underpinning valid contracts—that they were freely entered into and truthful representations of the facts. Therefore, the senator could order a notary to delete from his volume any instrument to which one of the parties had been forced to consent. If such compulsion came to light after the original notary had died, and was proved by the testimony of “five good men,” the senator could ask the officers of the notarial college to remove the offending document from the notary’s protocol.26
The 1363 statutes had little to say about the actual production of business acts, but their modest interventions alert us to possible weak points in contemporary practices as well as to the influence of ius commune. At the time of the initial transaction between notary and client, the lawmakers instructed the notary to copy in quaternutio suorum protocollorum the substance of what he had heard and the names of the witnesses before leaving the place of rogation.27 The “substance” and witnesses are, of course, the jurists’ legal requisites for a valid notarial instrument, as we saw in chapter 1. Should we infer that in their haste some notaries were forgetting these crucial details? More likely, they were scribbling them on whatever loose sheet they had at hand and perhaps failing to keep these rough notes or to recopy them in a more organized fashion. Civic authority here promoted a different, though probably also current, practice, of having the notary carry a notebook (quaternutio) to record his acts.28 Quaternutio is evidently a fluid term in late medieval Rome, for we read three different words in this same passage in the extant statute texts, three variants in four manuscripts.29 While we do not know for certain what the quaternutio of the statutes looked like, they may have been the similar to the quarto-sized booklets made of a rough rag paper known as bomicina, which survive.30 However, these survivors may represent a later scribal phase in which the notes for each imbreviatura were recopied in chronological order, and often with more detail.31 When such quarto notebooks were stitched together they formed a composite volume, usually referred to by late medieval notaries in Rome as a liber (book) but called by Roman statute writers, following the jurists, a protocollum (protocol).32
By demanding that notaries use notebooks early in the process of redacting a business act, the municipal regime encouraged a particular form of written memory that would shape decisively the subsequent evolution of both Roman notarial documents and the legislation policing them. Undoubtedly Roman notaries were themselves responsible for the initial choice of the codex form of the quaternutio over its chief rival, the pierced and stitched pile or filza, which was confirmed by this 1363 legislation. Notaries in the busy port of Genoa, by contrast, experimented with both notebook and filza and ultimately found the filza form more efficient for rapidly drawing up a large number of contracts.33 The regulations were significant, however, not only because they approved a specific material vision of the Roman protocol, one in which the volume composed of notebooks was the norm, but also because of their clear insistence that even the first rough notes of a contract be recorded with an eye to their preservation. City laws thus attempted to firm up the foundation beneath the public instrument, so that the notary would be in a position to produce the supporting evidence he needed to prove its reliability if he were challenged.
Ever mindful of court deadlines and of the damages to suits for missing them, the legislators urged notaries to respond within three days to a client’s request for a public copy of a business act. They also specified a tougher physical medium for the public copy, the version of the instrument that circulated, than for the protocol; notaries were to use parchment or carta de corio, paid for by the client, rather than rough rag paper.34 Notwithstanding the solicitude for notarial records thus displayed, the statutes were remarkable also for their reticence. As was the custom in medieval and early modern Italy, they had nothing to say about how notaries were to prepare or keep their volumes.35 They were silent about the conventions used to formalize documents. They did not legislate, with one exception, on the presence or absence of signatures or symbols at any phase in the redaction of the notarial act.36 And at a time when Bologna, Modena, Reggio, Mantova, Ravenna, and Venice had already compelled their notaries to submit either copies of imbreviature or fully extended transcriptions to special government offices, Rome merely ordered them to inscribe promptly an abbreviated version of a transaction in a particular scribal vehicle.37
The regime that expressed its desires and anxieties about documents in the 1363 statutes was friendly to the interests of notaries and conceded them a large measure of independence.38 Their autonomy in creating valid instruments was complete; no judges supervised or signed the contracts or wills that notaries drew up for their clients. Their business acts were privileged evidence in court. The statutes made it difficult to accuse them successfully of falsehood and attempted to shore up their records at moments of structural weakness, such as when they passed out of the physical possession of a living notary. While laws promoted the practice of taking early notes in notebooks and defended the customer’s interest in obtaining a public copy of an instrument in a reasonable amount of time, they left almost all the other details of redacting, compiling, and keeping their business acts to the notaries themselves.
Were these important practices subject perhaps to the rules of the notarial college itself? In the absence of evidence, in the form of either statutes or abundant intact notarial documents from the fourteenth century, we cannot be sure, but the silence of the sources is not without eloquence. Would we be left with fewer than a hundred notarial protocols from the entire trecento if Rome, like Bologna and other north Italian cities, had required notaries to deposit a copy of their acts in a special public registry? Yet the Roman government was not alone in the free hand it gave to notaries and their heirs in the late Middle Ages, for the majority of Italian cities lacked such registries. Like those of many cities, Roman laws generally had as little to say about the disposition of notarial records as they did about other forms of income-generating private property, such as cattle or houses. Was this an odd fate for what some jurists had celebrated as “proof proven”? Perhaps, yet we have also seen that the 1363 statutes did distinguish the notary’s volumes from other kinds of property in two important respects: they could not be destroyed and they could not be bought or sold.
Legislation of the Fifteenth and Sixteenth Centuries
THE NOTARIAL REFORMATIONES OF 1446
Roman legal and notarial sources grow steadily more plentiful in the quattrocento and cinquecento, though they remain spotty by comparison to other Italian cities.39 By demanding that clerics be tried in their own courts according to canon law, the popes had succeeded in driving a fresh, or refreshed, set of distinctions through urban society some three decades before Martin V arrived back in Rome in 1420. This meant a dual legal system, a proliferation of judicial institutions, and a fragmented professional world for Roman notaries with consequences affecting their documents.
Against this complex backdrop, rules governing business acts might now originate from multiple authorities: the city, the notarial college, or the papacy. We seem to hear from the notaries themselves in the most important surviving evidence from the fifteenth century, reformationes—that is, revisions—to their association statutes dating from 1446.40 While the timing and agency of the text may be more complicated than first appears, these regulations had unquestionably acquired authoritative status by the second half of the fifteenth century. The revisions exist in a unique copy commissioned from a prestigious scribe in 1486 by the Roman municipality as part of a compilation of city laws, which was used as evidence in legal proceedings until 1519.41 We may not have the original statutes of the college, which these thirty-four rubrics “reform,” but we do have the city government’s authorized copy of the rules the Roman notaries had adopted by the mid-quattrocento. They penetrate much more deeply into notarial writing practices than the 1363 city laws.
Although virtually all the passages about the notary’s pages that appear in 1363 are repeated, fresh additions further enhance the stature of the protocollum. Notaries were now subject to criminal prosecution if they failed to record a transaction (rogitum) in their protocol, which expanded the definition of the crime of falsum considerably over that of the 1363 statutes.42 In line with ius commune, Roman statutes were positioning the volume as the ultimate legal repository for a valid business act. Not surprisingly, therefore, the notarial statutes of 1446, for the first time of which we know, tell notaries exactly how they are to construct their protocols. A “well-bound” volume should be made each year. On its cover, or perhaps its first page, the notary should put the date, the pontifical indiction, his signature and symbol, and the number of sheets within.43 Going beyond the traditional threats of fines, the college added a novel means of enforcement. Notaries were to bring their new volumes (libri) to notarial officials annually during the week of Corpus Christi to be imprinted with “the stamp of the college of notaries.”44
Although we know very little about how—or whether—these policing measures functioned in fifteenth-century Rome, they leave little doubt about the privileged material and legal position of the protocollum. What this meant for the status of any particular notarial act was plain and echoes the thinking of the jurists. According to the profession’s own rules, a business act must appear with its key contents and formal elements bound within a collection of all the notary’s instruments for a single year. The public copy, on the regulation parchment, was an option available to clients who wanted to pay for the extra labor and materials, but the validity of the act depended on what was written in the volume possessed by the notary. Not much was said about earlier phases of writing apart from the 1363 injunction to jot down the main details of a contract in a notebook before leaving the site of the transaction. The 1446 notarial statutes were almost completely silent about whether the record should be left as an imbreviatura or should have its abbreviations filled out in a fully extended version, about any phases of recopying, and about what ought to become of any rough notes. Up until 1580, custom would regulate these practices. The profession emphasized instead gathering the notebooks of business acts within a particular kind of textual container, one marked by a distinguished juridical pedigree, the bound and labeled protocollum.
One regulation did intrude deeply into notarial writing practices in 1446 by dictating the number of lines and letters notaries had to write when they made copies for clients. In addition to rogating transactions, notaries counted on income from reproducing documents, and they charged a standard “copy fee” per page. Concern about the cost of civil justice motivated the legislation, which was directed at copies of court cases called registra, but the 1446 college statutes casually extended it to copies of business acts as well. For each ducato he was paid, the notary must hand over forty-eight pages of writing with twenty lines (versus) to a page, and at least eight words or thirty-two letters to each line.45 We do not know how or whether these mandates on scribal labor were enforced, but they are the first signs of a pattern in which the authorities’ desire to control judicial documentation spilled over onto business acts. New disciplines arising in association with litigation thus stretched out to grasp contracts and testaments.
Another harbinger in the 1446 statutes, though strictly limited in its application, is our earliest Roman legislation requiring that the abbreviated version of the contract be fully extended, that is, written out without abbreviations. This requirement was meant not to be a general practice but rather to head off future quarrels on those occasions when two notaries jointly rogated an instrument or worked on the same lawsuit. The two were not to separate until they had agreed on the substance of the text and recorded that common understanding by fully extending the imbreviatura. As insurance, they were also to attach their rough notes to the instrument; one notary was to sign this text, and the co-notary to keep the signed copy in his protocol.46 The practice of fully extending business acts in Rome may have begun within these special cases; notaries of the quattrocento and cinquecento increasingly did it more generally, although it did not become mandatory until 1580.
Scrutiny of the protocols of living notaries brought fresh attention to the handling of the business acts of dead notaries. With the 1446 rules, we see the first tentative efforts to create, for some of these protocols at least, a protected final resting place, notwithstanding their continuing qualification as private property, the possession of the notary’s heirs. The profession focused in particular on those records mostly likely to disappear after a notary’s death, protocols inherited by persons or institutions lacking intimate ties to the notarial profession. While repeating the 1363 provisions, the 1446 revisions also broke significant new ground.47 Heirs must notify the officers of the notarial college within two days of the notary’s death “and show them all the volumes.” Making clear that it was their responsibility to gather up any loose instruments that might have been lying around, the laws penalized the heirs if the protocols did not contain an entire year’s writings. Within a week of the notary’s passing, the officers were to lock these documents in a chest with two keys, retaining one key and giving the other to the heirs. If the heir was a notary himself, he was allowed to take the chest to his house, though he would not have been able to open it without the second key belonging to the college officials. As in 1363, the notarial college officials, under judicial supervision, retained their responsibility to check any public copies made from the imbreviatura of a dead notary.48
The key, though short-lived, innovation in 1446 was that heirs who were not notaries could no longer keep in their physical possession the notarial documents they owned. Instead, “for the preservation of the writings” they had to permit these locked chests to be placed in the sacristy of Santa Maria in Aracoeli, the church that served as the ritual center of both the municipality and the notarial college. This passage is the earliest Roman evidence of the notion of a dedicated space, an archive, for the city’s notarial records. Admittedly, it was an archive conceived less as a place of consultation than as a treasury of precious objects.49 The 1446 college regulations envisioned gathering and keeping these volumes in a church sacristy, a secure location where costly vessels, plate, and vestments were stored, and they emphasized locking them tightly, as if their value lay in being there rather than in being read. Yet the notaries’ palpable archival sensibility marks a preservationist’s advance over the measures articulated in the 1363 city laws, which dealt with the worrisome fate of a notary’s business acts after his death by prohibiting their commerce or destruction.
Did the sacristy of Santa Maria in Aracoeli fill up with chests of documents in the later fifteenth century? Although further research might enlighten us, it does not seem likely. The proprietary interest of heirs in protocols was too strong and the college’s enforcement mechanisms too weak. This regulation was reversed by Pope Alexander VI in 1494 and superseded by rules less favorable to the preservationists and more favorable to the heirs of notaries.50
THE CITY STATUTES OF 1580
Almost a century after the manuscript containing the notarial college’s 1446 revisions to its statutes was penned, the Roman city government, with papal approval, issued a new version of city law that significantly altered the notary’s business acts. The statutes of 1580 resulted from an effort within the civic administration to confront the gaps that had opened up between law and reality.51 Led by lawyer Luca Peto, the administration sought to reflect more accurately how the municipality actually functioned in the new era of papal dominance. From the mid-fifteenth century on, the pontiffs had showered decrees upon the Romans, and Peto systematized this haphazard accumulation into his careful revisions.52 Peto’s rendition was so successful that the 1580 edition was to endure as the final synthesis of Rome’s local law until 1847. Because in 1507 the pope had created a separate association for curial notaries over which the municipality had no authority, the new statutes applied only to the Capitoline notaries—that is, those matriculated in the college of city notaries. Four articles of book 1 of the 1580 statutes summarize the former rules on notarial documents and show us the innovations of the sixteenth century. While the revised articles bore titles harking back to the 1363 and 1446 statutes, they rearranged and restated the older elements and explicated novelties with new precision.
The bound and labeled protocollum retained its superior legal position, but it was quite a different kind of volume from what it had been in the fifteenth century.53 Its most important change was to include only the mundum or complete texts of the business acts that notaries had rogated rather than the abbreviated versions that had characterized the imbreviature. The protocol of the 1580s’ legislators was more uniform than its ancestors. “Each year the notary should put together his protocol[s], as many as he wishes, which should consist of numbered sheets, well joined and bound together, in which the instruments that he has rogated should at least substantially be recorded in mundum within a month of the day they were rogated.”54 The 1580 statutes imagined that there might be not one but several bound protocols from a single notary in a given year. If the 1446 college regulations had left some ambiguity about numbering pages, it was now clear that each sheet should be numbered. Though they no longer mentioned the internal quaternuti, or notebooks, their description of the protocol, “bene compactis et ligatis,” implied that it was still composed of elements joined together.
Earlier legislation, whether from the city or the notarial college, while emphasizing that notaries should not leave the site of the contract without recording the legal essentials of the transaction, had said nothing about successive transformations of these notes before their appearance in a bound volume. The abbreviated versions of the testaments or contracts that clients expected to find in the notary’s protocol had been legally and materially sufficient in the fourteenth and fifteenth centuries.55 Legally, they constituted the crucial evidence that the notary had recorded a valid agreement or will; materially, they functioned as the clay from which a fully extended public copy of the instrument could be shaped, if a client asked for it and paid the extra charges. By the late sixteenth century, however, abbreviated texts were overtaken by a fresh input of ius commune and perhaps by new writing habits, which repositioned them in city law.
The imbreviatura of the 1580 statutes was no longer the last stage in the production of a valid instrument but a midpoint. Rome’s laws now mandated that the notary take one further step.56 As always he must make notes (notulae) before the parties left his presence.57 These notes must be entered into his imbreviatura, which was for the first time in Roman legal sources referred to by the term from learned law, matrice. Finally, in a timely manner he must prepare a mundum version, which was the fully extended text with its abbreviations spelled out. Enforcement methods were unchanged: the threat of fines plus inspections of protocols by college officers, now however shifted to the week after Christmas. The key role of Luca Peto in rewriting the 1580 statutes may explain why the jurists’ term matrice now entered Roman legislation, but the demand for full transcriptions of acts has no obvious source apart from the notaries’ and their clients’ own changing practices.
Once synonymous with the protocollum, the imbreviatura was so no longer. Consequently, despite its new association with the juridically resonant concept of the matrice, its material destiny was uncertain. This is made plain in a passage that, while ostensibly addressing the case of a business act rogated by two notaries, in fact illuminated notarial writing practices more generally.58 What was to be done with privileged evidence, like signatures, that would have to be recopied as the transaction went from the abbreviated to the mundum version? If the parties to an agreement or the witnesses had signed in the imbreviatura, the notaries should “diligently preserve it.” The implication was that retaining the imbreviatura was optional. Should they fail in diligence, it was of no grave concern because the full version in the protocol would “mention the signature as it appears in the matrice.” The language of the 1580 statutes reflects the new subordination of the imbreviatura, now synonymous with the matrice, to the protocol with its full mundum texts of instruments and wills.
The protocol retained its preeminence as the authoritative vessel in which valid, and indeed annulled, business acts must find their place, yet the nature of the texts it contained had changed significantly. These were now fleshed out versions, with all the “etceteras” filled in. “[Notaries] can extend the abbreviated clauses in the matrice, according to their style, in the protocol and [in the] public instrument.”59 By style the legislators here meant the customary legal formulas, which, as the jurists recommended, were determined by local formularies.60
While leaving composition largely in the hands of the notary, therefore, the laws strengthened the role of the protocol as a repository, which could be consulted for a complete history of what had happened to the instrument. City authorities pushed notaries in the direction of ever-more meticulous inscription of their own document-handling practices. As in the past, removing an annulled act from a protocol was prohibited, but now notaries were also instructed to indicate its fate in the margin of the contract and to include the names of witnesses to the act of cancellation.61 Generalizing a practice that individual notaries had certainly maintained much earlier, the laws instructed notaries to make a marginal notation next to the instrument in their protocol whenever they issued a public copy of it.62
The municipal authorities also pressed for timely production of business acts—a more difficult goal once protocols were to hold completely transcribed instruments and wills. No deadlines had previously existed for writing a transaction in the imbreviatura; now notaries had to make the mundum version within a month.63 The temptation for notaries to collect their fees and halt their labor with the bare legal essentials, which had after all been the customary writing practice before the sixteenth century, died hard. Henceforth the Roman authorities would endlessly repeat the rule that notaries fully extend their abbreviated matrici by the legal deadline. Yet the 1580 statutes increased to a week the amount of time clients had to wait for public copies they had requested.64 While notaries could delay responding to clients’ demands for public instruments, they faced new deadlines in preparing the texts that went into their protocols.
Finally, the city government that had sponsored the creation of a public archive for the acts of deceased Capitoline notaries in 1562 stiffened the procedures it had initially permitted for making copies or transunti from these records. The 1580 statutes restated the elaborate legal formalities that were first set forth in 1363.65 Only copies made in accordance with these provisions, they declared, would carry the same probative value as the originals.66 They also guaranteed that revenue from transunti would continue to flow to the notarial college.67
Following more than two centuries of civic and professional legislation business acts in Rome had assumed a form that would prove enduring. After 1580 it would no longer be the municipality, however, but the papacy that would promote changes in the ways notaries wrote and kept wills and instruments for their clients. Although they were not the last word on the notaries’ pages, the statutes of 1580 were the final dispositions on notarial documents issued by the city government. Less sympathetic to notaries than the 1363 statutes, they nonetheless envisaged a significant role for the college of city notaries in the policing of that part of the profession over which they had jurisdiction. Pope Sixtus V’s decision of 1586 to sell their offices transformed the profession by tightly attaching Capitoline notaries to the tribunal of the senator, and of course it rendered the role of college officers, as set out in the 1580 statutes, obsolete. After 1586 the thirty new Capitoline notaries, owners or lessors of notarial offices, found themselves increasingly taking orders directly from the pope or officials and commissions of the Curia like the notaries of other courts in Rome. In the course of an intensive effort to improve the functioning of these courts, Pope Paul V emitted legislation in 1612 that made slight physical alterations to the notaries’ pages but radically reconfigured the ways they were handled and conceived. Together with the institution of venality under Sixtus, this legislation laid the foundations for a changed documentary regime in Rome. The breaking wave of Paul’s reforms swept the Capitoline notaries along with all the other notaries in Rome into a new era.
The Reforms of Paul V
The papal commissioners who worked from 1608 to 1610 to write the laws known to later Romans simply as the “riforma di Paolo V” intended not so much to disrupt the usual ways notaries wrote business acts as civil litigation papers. The target of the reform was the judicial system, and notaries figured prominently in its provisions because of their place in that system.68 Yet, if the two types of documentation, business acts and judicial acts, were conceptually and functionally distinct, one of the most significant innovations of the 1612 legislation was to intensify the links between them. In the process of making justice work better in Rome, the papal commission unintentionally affected business acts as well.
Although many rules were holdovers from the past, the reform committee compiled an array of unprecedented detail; there are 127 regulations in the chapter on notaries (ch. 19) and 27 more in the chapter devoted just to their judicial acts.69 Some of the reforms were clearly responses to new problems arising from making the notarial offices venal, like the difficulties the authorities now had keeping track of which notary exercised a particular office or regulating practices in enlarged offices where lower staff did the notary’s traditional work.70 Other measures, reacting to the city’s dynamic finance sector in these decades, attempted, fruitlessly, to keep notaries out of new kinds of credit operations.71 Reflecting this more impersonal system of exchange, notaries were now legally required to know the true identity of a party to a contract or find at least one witness who did.72 The majority of the provisions, however, in one way or another expressed the state’s wish to render writings potentially necessary to civil justice more visible. Office income from all documents, business and judicial, was now to be recorded carefully in the receipt book (liber receptorum), the better to see what rates the notaries were charging.73 Similarly, the abolition of the fee for looking at instruments and the new requirement to put indexes in protocols made it easier for people to find their notarial records. Via dozens of similarly minute provisions, many focused on the ways notaries handled business acts, the papal authorities painstakingly dismantled the very obstructions between documents and clients that notaries who owned their offices might well have preferred to maintain.
Some of the new regulations grew out of the recognition that notaries simply were producing more, or longer, documents. Paul V’s reforms ordered that instruments be gathered together every three months and allowed three months to make the mundum versions, though Giovanni Battista Fenzonio argued that Capitoline notaries were subject to the shorter deadline of the 1580 statutes.74 The legislation also required that every protocol have a table of contents (indice). Because of their need to find a specific act easily, Roman notaries had been creating such indexes long before 1612; Nardo Venettini, active between 1382 and 1428, provided meticulous examples in his protocols.75 The papal commission showed its interest in making the consultation of notarial documents easier by thus generalizing such practices. A similar motivation may have prompted the state’s distinctive treatment of last wills and testaments, which were now to be bound separately from other business acts, once opened after the testator’s death.76
Some innovations arose from the larger size of venal notarial offices, in which the titleholder who lent his name to the office could not possibly perform on his own all the scribal labor demanded by his judge and his clients. The 1612 legislation faced this fact with some hesitation, repeating the 1580 city law that Capitoline notaries must write the judicial acts of their court themselves, but adding stipulations that members of the office staff who recorded proceedings be approved by the judge.77 It was less ambivalent regarding business acts, allowing sostituti to rogate instruments provided they sign them at the end.78
By far the most radical changes affecting business acts were greater access to simple copies and abolition of the visura fee. Both policies built on city and papal initiatives that went back some decades and now reached maturity. The 1612 legislation reinforced a practice mentioned in a papal list of notarial fees in 1562, which permitted clients to pay a lower rate for what were called “simple copies” of their contracts and wills.79 A simple copy, in contrast to a public instrument, lacked the formalities of the date and place of the transaction and names of witnesses and notary; it was not even signed. Simple copies did not constitute judicial proof, and their use in court was explicitly forbidden. This less formal and cheaper type of notarial documentation was elaborated somewhat in the city statutes of 1580, which replaced the flat rate for simple copies with a rough sliding scale.80
Paul V’s commission gave the matter much more attention than had the 1580 statutes, showing a clear desire to make simple copies available despite evident objections from notaries.81 The law now insisted that notaries provide simple copies of instruments at the copy rate, if their clients wanted them, though it exempted what must have been one of the more popular types, testaments. The fees for simple copies remained lower than for public instruments, but the 1612 legislation introduced a more refined sliding scale with an increased number of categories and higher amounts in some categories. Although the state made concessions to notaries in some of these provisions, it decisively upheld the right of customers to purchase a cheap version of their business acts from the rogating notary.
The papal reformers did not stop there. In its most significant break with local tradition Paul V’s legislation went on to abolish the visura, the fees that clients had since the fourteenth century paid notaries to see their own documents.82 Henceforth clients could view the instruments that had been rogated by their notary or submitted to him in a civil action for free, as well as obtain a simple copy of them at the reduced rate.
Taken together, the two measures broke down barriers that Roman authorities had historically allowed notaries to erect between clients and the legal records of their business transactions. The new papal legislation did not overturn the notaries’ property rights in these papers, but it cut off some of their traditional income and imposed a more diversified product line upon them. While the notaries might own the documents, the papacy intervened in 1612 to insist that customers be able to see them freely and that they be permitted to take away what were in essence “consultation” copies.
What could account for this deliberate policy of enhancing access to the notaries’ protocols? Again, the answer lies in the links to litigation. To men intent on improving a legal system that privileged written evidence, it must have seemed only logical that subjects be guaranteed access to such evidence. But what was the logic of allowing simple copies of business acts to circulate, copies that in theory could not be submitted as evidence in a case? Perhaps so that clients could show them to their attorneys for legal advice? Whether this was in the minds of Paul V’s reformers we do not know, but decades later Roman notaries would complain bitterly that clients’ procuratori had indeed exploited these innovations at their expense.83 In any event, the source for the abolition of the visura for instruments in 1612 must surely be the principle, first articulated in city legislation of 1521 and repeated in 1580, that notaries were to exhibit judicial acts to the parties and the judge without charge.84 For Capitoline notaries, the reform legislation registered the new reality that ever since 1586 had brought their two streams of documents, business acts and judicial acts, into closer and closer contact. We turn now to that second stream of notarial writing, almost obliterated from the archives but crucial to understanding scriptura publica in early modern Rome.
Judicial Acts
The City Statutes of 1363
Pushing back again in time to the fourteenth century, we are struck by the prominence of civil justice in the politics of the day. One of the first demands of the popular reform movement led by the notary Cola di Rienzo in Rome in 1347 was that lawsuits be settled within fifteen days. Despite Cola’s violent overthrow in 1354, the statutes of 1363 bore the imprint of many of his political goals.85 They certainly attempted to devise procedures that would carry a plaintiff from complaint to judgment in no more than two weeks. Rome’s popular regime saw notions of good government and speedy civil justice as closely connected, as would its papal successors.86 Notaries were key agents in the processes of civil justice, and efforts to police their judicial writing practices can be detected even in this very sympathetic 1363 constitution, though to appreciate them we need to know something about how a lawsuit took place. Although litigation records do not survive for this period, book 1 of the city statutes focuses entirely on civil procedure, and its more than 120 articles provide the raw material for such a reconstruction.87 How might we imagine such a suit unfolding in the Rome of the 1360s, and what role did notaries play in this process?
It might have happened like this. An irate creditor storms up the Capitoline Hill to a notary’s bench, brandishes the instrument of obligatio that states what his debtor owes him, summons him to appear in court to pay or face the consequences, and leaves the instrument (always in public form) with the notary. A process server (mandatarius) searches out the debtor’s residence and hands him the summons (citatio) or, in his absence, reads it aloud so that it can be heard in the neighborhood. He then returns it to the notary, who writes on it the date of the announcement. The debtor who shows up before the judge to face these claims (evidently many did not) may ask for a copy of the instrument, which the judge’s notary must give him within two days. The plaintiff then has ten days to disprove the evidence. If he has raised doubts (exceptiones) about it, the judge can grant three extra days for the parties to make their arguments, a period when witnesses may be questioned by the judge or notary. Failing to disprove the creditor’s document, the debtor faces distraint of his goods or person in payment of the obligation. Before the creditor actually collects, however, he will likely need several more court papers: the decree of seizure, the record of the distraint, the record of delivery of the goods to the creditor, the quashing of the obligation. The debtor for his part, whether his property is sequestered or he himself imprisoned, will also need warrants (mandata or mandati) from the notary of the case, if only to get his goods or his person released.
Based as they were on ius commune, which since the twelfth century had demanded that notaries record trials, Rome’s 1363 statutes take for granted the judicial services of notaries.88 Like procedure elsewhere in Italian civil courts, litigation on the Capitol was primarily an affair of documents, a network of intersecting and interacting citationes and mandata, all issued by notaries.89 The statutes do not describe the civil notaries in any detail, referring to them in passing as the notary of the case (notarius cause [sic]) or notary of the acts (notarius actorum) or simply by the ancient term tabellionis.90 We learn by chance in the following passage that notaries were delegated to specific judges. “In addition, … a notary who has been assigned to the office or bench of any judge in the Capitoline court cannot serve as attorney [procuratore] for anyone during the period in which he is serving at that bench.”91 Although we know that they earned fees for their judicial sentences based on the value of the amounts in dispute,92 we know nothing about how many Roman notaries operated as court officials, for how long, or how they were selected.
Friction between notaries and litigants is what the statute writers lubricate with their legislation. For example, because one of the notary’s main jobs was compiling the dossier of documents submitted by the contending parties, the legislators insist that when he lost an instrument, he must remake it at his own expense and compensate the parties for any harm that his negligence may have caused them.93 Another annoyance to consumers was the notary who lagged in giving them copies, either of evidence or of witnesses’ responses to questions, within the strict deadlines of Roman civil procedure. Under threat of fines, the law gave notaries two days to make a copy of a document that had been submitted by the parties and eight days to produce a transunto of an instrument from the protocol of a dead notary.94
Because oral testimony was often key in lawsuits, clients might well suffer—indeed, the whole judicial system could come to a halt—if judges and notaries delayed their examination of witnesses. The statutes threatened them with penalties if they tarried. Clearly assuming that notaries would not just read questions and record the witness’s replies but would listen and follow up if necessary, the legislators of 1363 reserved their most detailed instructions for the topic of witness testimony.95 Notaries were to report what the witness said “fully and explicitly” and not simply write “so and so said such and such.” If the witness was not precise in his answers, they were to ask how he knew what he claimed. Merely stating that the witness had agreed that a particular statement was true without discovering the reason for his knowledge would net them a fine and invalidate the testimony, which would have to be taken again. Oral testimony had first to be textualized in order to play its role in the high-stakes game of proof. This was the job of the civil notary at the fourteenth-century Capitol.
Legislation of the Fifteenth and Sixteenth Centuries
THE NOTARIAL REFORMATIONES OF 1446
After its return in 1420 the papacy intervened more vigorously in the judicial affairs of its Roman subjects, and, while upholding the jurisdiction of the senator’s tribunal, made clear its restriction to lay inhabitants. In 1469, in the name of judicial reform, Pope Paul II forced revisions of the city statutes to emphasize this point.96 The sovereign’s new energy seems to have propelled others in Rome to pay fresh attention to the mechanics of the judicial system, too.97 The notarial college’s statute revisions of 1446, which we recall were part of the official manuscript of the 1469 city statutes, for the first time indicate how the notaries at the benches of the Capitoline judges were to be chosen. And, in striking contrast to the few chance comments about judicial acts in the 1363 city statutes, the notaries devoted a good deal of attention in their own text to how they should write at those benches.
Allocating notaries to the court was the first task. As chief magistrate of the Capitoline tribunal, the senator within a week of beginning his six-month term was to meet with the officers of the notarial college to assign notarii actorum to the civil judges.98 No numbers were given, but the qualifications were more than simply having matriculated. As we saw in chapter 2, to exercise a civil judicial office, notaries must also be Roman citizens, or owners of a residence in Rome, and untainted by a bad reputation.99 The requirement that they be of local origin or interest distinguished them from their colleagues handling the criminal cases of the senator’s tribunal. It gave employment to Roman notaries but made them vulnerable to the perception of illegitimate influence on the proceedings, because it was hard for contemporaries to imagine that a native son could be completely fair to friends and enemies alike. These competing values made the notary’s good reputation, a standard theme of the jurists, all the more essential.100
In parallel to its attention to the protocol of business acts, the 1446 college legislation focused on a physical container for judicial acts. Judges should ensure that the notaries at their benches wrote all judicial acts in one book.101 It is probably to this book that the regulations were referring when they stated that notaries must keep a large, bound folio-sized volume called a manuale or bastardello with the names of the senator and the judge, the date, the notary’s signature and symbol, and the number of sheets stamped with the seal of the college. Before leaving their seat, notaries were expected to record there “all judicial acts, as best they could, at least what was done [effectum] and the essence of the act [substantialia].”102 When making copies (registra) for the parties from the manuale, he must synthesize (reducere) them precisely, giving the sense of all the original evidence, instruments, witness testimony, and other documents submitted to the court.103 We have very little material evidence of civil litigation from the fifteenth century, but a few manuali of acts have survived, the earliest from 1458. Civil notaries, like criminal notaries, also used filze, stitched piles, to hold together the documents they received.104
The notary had to make copies of the summaries within the manuale to give to the contending parties. Litigants who wanted these so-called registra, as we saw earlier, could pay a set fee that guaranteed them a specific number of pages of text: for one ducato, forty-eight pages, with twenty lines of writing on each page, and at least eight words or thirty-two letters to the line.105 The 1446 notarial college regulations made it plain that the job of the civil notaries was to write and especially to make copies. While judges were sitting, they declared, notaries were to keep silent and write.106 Even if the judges left their posts, court notaries could not wander around the palace; they must remain in their seats writing so that they “and their copies” could be found.107 By law, if perhaps not always in practice, those copies had to be produced within short deadlines, and notaries who chatted and stretched their legs were not going to get the job done.
Writing was a powerful weapon in litigation, of course, and the regulations of the notarial college sought to deflect deep suspicions about whose interests court notaries were actually serving. Procurators, as attorneys were called, were not allowed to select the actuary notary for their case. Only judges had this right, and they were to distribute the cases among their notaries following a prearranged order.108 Yet the boundary between the activities of representing the parties (procurators) and of writing the summons, testimony, and sentences of the case (notary) was difficult to patrol. Anxiety about possible collusion between those performing the two roles surfaced more insistently in the 1446 regulations of the notaries than in the city statutes; perhaps it was a sign of a profession on the defensive in the new atmosphere of judicial scrutiny.
Proper conduct ought to have been very clear. Three separate rubrics declared that actuary notaries could not represent litigants before their own judge, and others forbade them as well to “follow” any attorney and to write for them “in their houses.”109 Yet ambiguities abounded. Rubric 34 of the same text stipulated that, to learn their trade, young men should work for a year for a notary or a procurator, in whose house they might well be found writing. Sometimes clients deputed their notaries to serve as their procurators either for a single case or for all of them.110 And what are we to make of the rule that ordered notaries not to speak at the bench unless the procurator of the case was absent, in which case they could fill in (supplere) for the missing attorney?111 Perhaps this was just scribal error; when the 1580 statutes repeat these lines they change them to one of the missing litigants.112 Yet the inference is inescapable that notaries knew the procurators’ job well enough to stand in for them, that notaries who were not on judicial duty could legitimately act as procurators, and that notaries working for one judge might switch roles to bring a case before a different judge.113 If all of this was permissible, the line between notary and procurator was a very fine one, and the potential for abuse, at least in the perception of some litigants, great.
Fees, of course, were another source of conflict with clients, who bore all the costs in civil proceedings. The fact that notaries collected and distributed the money owed to court personnel, including judges, exacerbated tensions. What people paid for justice was a matter of intense concern to the popes, who, almost as soon as they took up the reins of power in Rome, began issuing public announcements of judicial fees.114 Yet in this internal set of rules for the notarial college, notwithstanding its quasi-official status, fees for judicial acts were not yet subject to firm regulation or convention. The 1446 text swings between setting fixed rates for judicial acts and leaving room for discretion, on the part of either notaries or their judges. As we have seen, a notable innovation was setting the rate for and amount of writing on copies of judicial records for the first time.115 In charging for the judicial acts themselves, notaries were exhorted to conform to a list of fees that took up two pages of the manuscript.116 On the other hand, they were also instructed to treat litigants who were widows or poor people more mildly than other justice seekers.117 Finally, to heighten the confusion, the text further stated that judges should determine the payments owed to their notaries.118 Such ambiguity on the sensitive point of access to justice would prove intolerable to the papacy in the century to come.
CIVIC INITIATIVES, 1494–1521
Over the course of the quattrocento and cinquecento, the fate of the Capitoline notaries was linked closely both to changes imposed by the pontiffs on the senator’s tribunal and to the political fortunes of the municipal government. As both the court and the administration of the city of Rome felt the ground shift beneath them, they gradually reached out and grasped a different kind of role for themselves within the strongly monarchical regime that the Renaissance popes had established. The senator’s tribunal slowly assumed its place as one among many local courts, though one in which civil cases loomed large.119 The municipality sharpened its profile as the special patron of local lay institutions, including the Capitoline notaries. Meanwhile, the judicial uses of notaries’ pens attracted keen new scrutiny from the pontiffs at a time when they had come to view their own princely role as quintessentially judicial.120 Thus, a complex set of forces bore down on the writing city notaries did for litigants over the period between the revision of their college statutes in 1446 and their transformation into officers of the court by Sixtus V in 1586. While a paucity of sources and of scholarly studies makes tracing a precise picture of the evolution of civil justice in the fifteenth and sixteenth centuries difficult, key legislative initiatives affecting notarial writing are clear.121 The most important of these were additions to the city statutes in 1494 and 1521, Pope Pius IV’s new laws on the Roman court system in the early 1560s, and the ultimate revision of the city statutes in 1580.
In their 1494 revisions to the city statutes, which may not actually have been printed until 1523, the municipal elite made a few changes to civil and criminal procedures in the tribunal of the senator.122 While they had a dramatic legal effect on the preservation of business acts, their impact on judicial writing was limited to hastening witness testimony. Where the 1363 statutes had urged prompt interrogations, notaries now had a deadline of ten or fifteen days depending on the number of witnesses; they had another five days to provide litigants with copies of this testimony.123 The 1494 legislation does contain a clue to the obscure process by which actuaries were chosen to question witnesses: by lot from a selection list composed of “ten upright and expert notaries” from the first civil tribunal and six from the second. Explaining the new precision about the mode of sortition was undoubtedly the fact that the notary who took the testimony had the right to the entire fee for both interrogation and copies.124
Some of the same men responsible for rewriting the 1494 city statutes pushed reforms of civil justice more prominently in another version of 1521.125 In the background was the reality of much more competition for judicial business now that papal tribunals like that of the auditor of the Camera were increasingly active. Blaming the flight of would-be litigants to other courts on the slowness of Capitoline procedures, the civic council session of 21 January 1521 sought papal approval to speed up litigation.126 The council deputed a committee of civic officials, lawyers, and three officers of the college of city notaries to propose specific remedies, which won Leo X’s support and were printed on 28 September.127 Not surprisingly, given the legislators’ irritation with court delays, several of the fifty-six articles addressed notarial writing practices, and the final article was a lengthy repetition of past directives to the Capitoline notaries.128 Unremarked was the fact that since 1507 statutes emanating from the municipality no longer disciplined all Roman notaries but only those attached to the senator’s tribunal.
Given the long-standing suspicion of the intimacy of notaries and attorneys, and the 1446 prohibition on notaries’ writing in their houses,129 it is interesting that the statute writers actually increased the amount of time that court notaries were to train with procurators from one year to three years (art. 43). Although this was dropped in subsequent legislation, it is a strong sign of the civic leadership’s belief in 1521 that the Capitoline tribunal needed more expert notaries, as well as of the general fluidity between the two domains of judicial activity. Other changes attempted to press notaries to get their work done quickly. If the witnesses had been cited to appear for questioning and the questions from the accused had not yet arrived, the notary should go ahead and ask his own questions (art. 6). Judges should remove from the case any notary who dawdled in obtaining testimony (art. 7).130 The 1521 reforms even looked into delays caused by illegible handwriting. They required that copies of court records be written in italic (rather than gothic) letters, a sign that readability was already closed identified with this script, which became widely used in Italy in the course of the sixteenth century (art. 10).131 Their final injunction to the Capitoline notaries encouraged them to write their documents “elegantly and in an orderly manner,” if they wished to win eternal praise.132
While the new statutes emphasized notarial speed, they also made it clear that litigants could demand more writing from notaries than ever before. In the final article of the 1521 revisions, the authorities reiterated a set of notarial regulations dating from 1508. These describe a new kind of court copy, the extractus, which forced a good deal of labor out of court notaries in a short period of time. If the suit concerned goods or property worth at least twenty-five ducati, at the party’s request and upon receipt of a deposit the notary should make a “formal and orderly” extractus of all the written evidence submitted and actions taken in the case.133 The client’s procurator had three or four days to read the extractus, which the notary was then charged with recovering.134 Meanwhile, he was to produce a full transcription of the witness interrogations and attach these to the extractus before handing the complete dossier over to the judge for his decision. All this was to be accomplished within eight days of receiving the deposit, on pain of a year’s suspension from his office. This same legislation was also the first to state explicitly that documents submitted in a lawsuit over more than ten ducati could not be returned until the case was settled, unless the notary made and retained an accurate copy and a judge authorized the restitution. Again, what is noteworthy is the increasing number of occasions in which judicial acts had to be copied, notwithstanding the Roman authorities’ wish to speed up civil justice.
THE REFORMS OF PIUS IV (1561–1564)
The civic elite’s effort to address deficiencies in the senator’s tribunal in 1521 was not its last, but it was not to try again until the 1560s, just when the popes, like other European monarchs in this period, were seizing the initiative for improving judicial operations. Between 1561 and 1564, Pius IV singled out for “reform” all major papal tribunals in Rome from the Rota to the auditor of the Camera, as well as all the “ordinary tribunals,” that is, the many other courts operating in the city.135 In a pattern we have already observed with the Roman city government, judicial reform prompted the state to intervene in notarial activity.136 In the legislation on ordinary tribunals Cum ab ipso, published 30 June 1562, notaries were reminded once again not to act as procurators in their own court (no. 71).137 They were not to work for more than one tribunal (no. 70), and they were not to live in the house of their judge (no. 19).
The Capitoline notaries found themselves the target of five of the seventeen injunctions aimed at notaries. Most startling, as we have seen, was the maximum limit of twenty notaries, who were to write exclusively for the civil judges of the senator’s tribunal (no. 64).138 Along with the notaries of the papal tribunals (of the governor, Borgo, Savelli, Tor di Nona, Ripa, and Ripetta), the Capitoline notaries could not leave their posts without written permission from the pope (no. 59). Pius IV reminded them not to charge more for judicial acts than the fees set in the city statutes and, somewhat ominously from the perspective of civic jurisdiction, to follow the rates established for the civil notaries of the governor’s court in cases where no fees had been set (no. 65). Accompanying the half-dozen or so laws the pope issued to improve operations in the tribunals were the first detailed tables of rates for civil and criminal judicial acts by notaries in “ordinary” papal courts.139 These too were intended for Capitoline notaries, “in cases where their statutes did not provide” them. In recognition of their control over an important patrimony of instruments and contracts, Capitoline notaries were the only notaries whose heirs had to notify an official, the secretary of the conservators, when they died (no. 68).
Pius IV had met with notaries before promulgating his legislation, but by comparison to later papal judicial reforms, especially those of Paul V in 1612, his attention to them was modest.140 Yet, what little he said about the Capitoline notaries showed that he regarded their judicial activity as very much subject to his will. This he demonstrated not only by the radical step of reducing their number to twenty but also by setting default rates for their acts and requiring them to obtain his approval of their departure from the Capitoline court. Nevertheless, Pius did leave to municipal officials the selection of the twenty notaries, and he did acknowledge the authority of city laws over their fees, niceties that not all of his successors would observe.
It was not the first time that the papacy had imposed rules on the Capitoline notaries, of course; Julius II had done so, albeit briefly, in 1507. Pius IV’s efforts were more systematic, however, and heralded the practices that would remake Roman justice over the next fifty years.141 The details of his legislation provide clear evidence that the Capitoline notaries, despite the technical autonomy of their court, were being brought steadily within the papal ambit. What is not obvious is the attitude of the Roman civic government toward this development. Less than two weeks after Cum ab ipso was promulgated, a meeting of the public council on the Capitol heard a complaint from a civic official that abuses by notaries and procurators were causing “great expense to litigants” in the tribunal of the senator.142 Over the next year and a half, simultaneously with Pius IV’s efforts, the civic authorities prepared reform proposals of their own for the senator’s court. This project was part of a wave of municipal initiatives in the 1560s that would lead to two new archives as well as a building program and revised statutes for the Capitoline administration.143 The patrician families whose interests reigned there may have been trying to reassert privileges they felt the pontiff was ignoring. Or perhaps they welcomed Pius IV’s intervention and took it as an opportunity to press for further changes, some of which eventually surfaced in the new city statutes of 1580. The municipality showed no such inclination when it came to improving criminal justice, seeing this as a matter completely in the hands of the pope. They were less reticent about civil justice, perhaps because these were disputes about their own dowries, testaments, and property.144
The pope’s efforts of the early 1560s to improve the tribunals of the Curia and the city raised more explicitly than earlier civic laws the inherent problem of the cost of judicial writing.145 The list of fees for judicial acts had grown steadily since the fourteenth century, testifying to the elaboration and proliferation of different types of court documents. Yet a princely ruler wanted his subjects to have access to justice in his tribunals, despite the economic realities. Whether in city or curial courts, the legal system that depended so completely on documents, and that required those seeking justice to be able to pay the expense of making them, was clearly caught in a vise of contradictory pressures. Pius IV’s new laws had actually addressed documentation even before they had turned to the courts themselves; a motu proprio of 22 November 1561 targeted the way curial notaries prepared registra, copies of court cases made for the parties.146 Seven months later in its reform of city tribunals, Cum ab ipso declared that notaries could make registra only when the amounts in dispute exceeded two hundred scudi in value and not “in cases involving wages and destitute people or similar, in which one is to proceed summarily [executive].” 147 The push to eliminate judicial writing went further when Cum ab ipso prohibited any documentation at all in cases where parties were contending over no more than two scudi. When litigating over such small sums, unless there was a good reason, the judge should try the case and give his judgment orally.148 In a move driven by the contradictions rather than being the master of them, the pope concluded the lengthy official list of notarial rates for instruments and judicial acts in 1562 by declaring that notaries were to accept nothing “from poor and destitute people who are unable to pay.”149 In a more practical gesture, however, as we saw earlier in this chapter, this very list had been the first to publish lower rates for simple copies of notarial instruments.150 As difficult as it was within the existing notarial regime to overcome the fact that writing cost money, the papal reformers were keen to find innovative, though not always coherent, ways to do it. This theme would resurface in the great reform effort of the early seventeenth century.
THE CITY STATUTES OF 1580
If the Capitoline notaries had received glancing blows from papal laws directed at all notaries in the 1560s, they could count on being the exclusive focus when the municipality revised the laws used in its own jurisdiction and published them with papal approval in 1580.151 Because the Capitoline court followed its own legal procedures, rooted in the ius commune traditions embedded in the 1363 statutes, from which those used in the newer papal tribunals diverged, the 1580 statutes necessarily commanded the close attention of Capitoline notaries.152 Drafted in the 1560s and 1570s by the Capitoline procurator and jurist Luca Peto, who knew the notaries from a lifetime of personal experience in the senator’s court, the new text directed several articles to their judicial activities.153 Taken as a whole, the 1580 statutes consolidated past innovations rather than breaking new ground as they did with business acts.
As we saw earlier in this chapter, the revised city laws streamlined the senator’s court but maintained its profile as an important civil jurisdiction for lay Romans. The six judges of old were reduced to four: the senator, who had both civil and criminal jurisdiction; one additional criminal judge; and two other civil judges, the first and second collaterali, who were served by the Capitoline notaries. Peto’s revision did not limit the number of court notaries or tell us how they were chosen for their duties, though the text of 1580 does refer to a bussola, which might have been used for drawing lots as was the case in 1494.154
The statutes did describe the prerequisites for the job, sticking closely to those laid out in the notarial regulations of 1446, and it may be that any notary who met the criteria and was admitted to write by the senator and the officials of the notarial college could serve. Actuary notaries had to be Roman citizens with a residence in the city and on the matriculation list kept by the secretary of the conservators.155
The senator and officers of the notarial college must examine them “rigorously” on their suitability and adequacy for the job, certifying this in writing. The text of 1580 nowhere suggests that there was a fixed number of actuary notaries, and Peto corroborates this flexibility elsewhere.156 The statutes’ insistence on background checks by the college of city notaries also indicates that the profession maintained some control over the selection of actuaries and that city authorities viewed this role favorably.
Lawsuits no longer took, even in theory, two weeks but, at a minimum, two months.157 The new statutes repeated the 1521 revisions and Pius IV’s legislation in demanding that actuary notaries in the senator’s tribunal perform their duties themselves and not have an employee or sostituto substitute for them.158 Harking back also to 1446, the 1580 text insisted that notaries were to attend their judges in silence, diligently writing.159 The prohibition dating to 1363 was renewed yet again: on no account were they to act as legal representatives for anyone bringing a case in the Capitoline court.
The statutes addressed in a way different from that in the past the potential damage a notary could wreak on a legal proceeding if he was not perceived as impartial. Unlike the 1446 notarial college regulations, these said nothing about judges delegating notaries to particular civil cases. In fact, from other evidence we know that litigants themselves selected the court notary they wished to use.160 So the 1580 legislation provided new recourse if the defendant was suspicious of the notary employed by the plaintiff—measures that were softened subsequently by Sixtus V. Before a lawsuit was formally contested, the notary could be removed from the case on mere suspicion.161 If the suit was already underway, a higher standard prevailed: the litigant had to state a reason to suspect the notary, and the judge had to approve the notary’s exclusion. If the parties disagreed on a new court notary, the judge was to extract by lot the name of a notary “from the bussola of all notaries in his tribunal.” Any evidence submitted to the first notary was to be transferred to the new notary without payment. According to these statutes, a notary removed from a case because he was “suspect” instantly lost his office in all Capitoline tribunals.162 If in violation of the law he maneuvered himself back into the case, he would be liable to the penalties for the crime of falsum.
The three kinds of judicial writing that drew special attention in the 1580 statutes—the manuale or official record, the copies, and the witness interrogations—were all types targeted by earlier regulations. As in the past, notaries were enjoined to record each day’s acts, at least in essence, in the manuale before leaving the tribunal. New was the demand that these be bound every six or twelve months.163
The extent to which money dominated the production of court documents was ever more obvious, both from the growing fee lists for distinct types of judicial acts164 and from the bans on payment for certain services. Notaries made a living from payments clients made to view business acts, at least until 1612, and it must have seemed perfectly reasonable to them to treat judicial acts similarly. Legislators had a different view of access to documents in a court context. Reiterating a measure from 1521, they prohibited court notaries from charging the judge or contending parties for looking at a judicial act.165 Nor could they take money from litigants for showing them evidence submitted as part of the suit.
In a familiar theme, copies were to be delivered as quickly as possible, within two or three days if they were not lengthy. To police their compliance more forcefully than in the past, actuary notaries were to record the date when they delivered the copy in the manuale. In theory at least, if they took longer than three days, they could be removed from the case. The 1580 statutes incorporated and refined the early sixteenth-century innovations in the ways notaries produced and circulated copies of court documents. They retained the deadlines and procedures for making the extractus in cases involving more than twenty-five gold ducati but insisted on more meticulous copying. To the older language they added that “all acts [be] transcribed literally as they appear in the manuale, adding or extending nothing.”166 The statutes set a rate per sheet for these copies but did not increase the number of lines or letters demanded of notaries from those first set in the 1446 notarial regulations.167 All copies were always to have the same number of letters, words, and lines, on penalty of fine. Apparently there was some notion of how many pages could be copied in the eight days allowed by the law, for the statutes permitted the judge and notarial college officers to set an alternative deadline if the documentation was more than four hundred pages long. Fifty pages a day, we can infer, was the maximum expected of the scribal hand.
By the sixteenth century the privileges extended to notarial instruments submitted in a Capitoline lawsuit had been tempered somewhat since 1363; instead of “ready execution,” they required support from witnesses before they could be put into effect.168 Whether they questioned witnesses at home or before a judge or further afield, Capitoline notaries could expect routinely to conduct interrogations.169 The 1363 city statutes had instructed court notaries in some detail about how to take witness testimony in civil cases, and this was now yet more central to litigation. With their continued discussion of such examinations, the statute revisions of 1494 and 1521 contributed to this development.170
The 1580 statutes reasserted much that was familiar. Tradition dictated that notaries put all questions submitted by the parties to the witnesses and write down everything that they said “explicitly, completely, and without abbreviation [per extensum].”171 Notaries were ordered not to use vague formulations, and if the witness himself was uncommunicative in his replies, to warn him that he must describe what had happened specifically and thoroughly. “If the witness does not want to say more than that the question is true, then his deposition will prove nothing,” the statutes reminded readers. More surprising, though consistent with the wish to cut litigation delays, was the new language that shortened from ten days to two the deadline for taking testimony, on pain of removal from the case.172
On balance, the 1580 city statutes legislated no major changes in judicial writing practices equal to those for business acts. Instead they emphasized the work that had gone on before, especially in 1446 and 1521. The citizens’ legislative push on civil justice had crested in the early sixteenth century under the pressure of what was new competition from papal courts; by 1580 all seemed, deceptively as it turned out, stable.
A similar impulse to emphasize rather than revise old rules operated in the edict published in 1582 by the officers of the city notarial college.173 While the judicial activity of Capitoline notaries, and their sostituti, drew the greatest attention, its sixteen articles usually referred back to one or another passage in the 1580 statutes. One alteration was a new method of enforcing the binding of judicial acts (art. 14). It was mid-December, and college officials reminded all notaries working for the tribunal of the senator that they must present their bound and indexed manuali of judicial acts as well as their protocols for inspection in two weeks’ time.174 The most significant deviation from the 1580 statutes was, as we saw in chapter 2, the recognition that sostituti were in fact writing for the Capitoline courts. The greater message, of course, was the submersion of the notaries’ own process of regulation within that of the municipality.
The image of the Capitoline court notary that emerges from the 1580 statutes is one in which technical demands and legal responsibilities were highly developed, but conditions of employment vague. Six years after the promulgation of this final statement of Roman municipal law, Sixtus V, as we have seen, broke with text and tradition by making the Capitoline notarial offices venal, fixing their number at thirty, and assigning fifteen notaries to each of the two collaterali.175 Having been transformed into officers of the senator’s tribunal, the renamed notaries of the Capitoline curia were henceforth defined by their role as writers of judicial acts. If their assignment to the civil judges had been haphazard in the past, and we know so little about it that even that is a guess, now it was articulated and formalized. Offices were allocated once and for all to one of the two civil judges. The radical changes affecting the status, duties, and college of the Capitoline notaries, however, had little immediate effect on their writing practices, which continued for a time to be governed by the 1580 statutes and the traditions of ius commune. Sixtus V’s innovations altered their relationship to the judicial system, but the court reforms of Paul V in 1612 had more impact on their judicial acts.
The Reforms of Paul V
The most far-reaching papal effort to systematize judicial practices in the early modern Roman courts, Universi agri dominici, Paul V’s constitution reforming curial and city tribunals, was published in March 1612.176 It was the fruit of two years’ labor by a curial commission established in 1608 but first proposed under Sixtus V, which was known as the “special commission for the reform of the tribunals.”177 Before his election to the papacy as Paul V in 1605, Cardinal Camillo Borghese had worked under Clement VIII on proposals for improvements in the judicial system that had never come to pass.178 Like a number of his predecessors Paul seized the opportunity of his election to advance an agenda developed, and thwarted, in an earlier pontificate. The justly famous “riforma di Paolo V” was immense in its sweep and detail, dwarfing the legislation of Pius IV of the 1560s upon which it built, but was also conceived much more imaginatively as a unified judicial apparatus.179 Given the enduring patchwork of jurisdictions in city and Curia, this mighty but poignant effort at comprehensive reform had a touch of the fantastic about it. But it was a fiction powerfully wrought in its scope and scale, which would remain a touchstone for decades to come.180
The reformers took up every court in Rome from the papal Segnatura to the river-trade tribunals of Ripa and Ripetta, and every dimension of the justice system from prisoners’ food to judges’ fees. No official escaped them, but notaries drew particular attention, and their judicial acts were the only documents to receive a chapter of their own in the new legislation.181 In the remarkably comprehensive vision of the reform commission, notaries occupied the largest place not because they were at the top or even the bottom of the judicial hierarchy but because they supplied the system’s lubrication, its flow of paper. As we have seen, so focused was the commission on notarial pages that it even legislated on business acts, which had no direct bearing on the courts. Its primary interest, however, was judicial acts, especially those for civil courts, because legislation of 1608 had already targeted notaries working in criminal jurisdictions.182 In the view of the reformers, notaries were central agents of justice, even if it was justice pursued by individuals against each other. It was they who, with the aid of scribes, produced the countless types of warrants, kept the numerous documents submitted in cases, recorded all legal actions, and performed various other tasks in and out of courts and prisons. Making the writing practices of the actuary notaries its focus, the state sought to correct in some cases, modify in others, and establish the means of continuing surveillance in general.
The pope needed neither consent nor justification for seeking to improve his courts, and the commission made notably fewer gestures toward the special status of the Capitoline tribunal than did Pius IV in the reforms of 1562. Nevertheless, it recognized the force of the city statutes at several points, invoking them particularly if they set notarial fees or if they offered a higher legal standard than that promulgated in the 1612 constitution.183 Like all legislation in papal Rome, the “riforma di Paolo V” did not dismantle existing laws but poured a new layer upon them, which like lava inevitably flowed over the notaries of the Capitoline curia. The reforms sought to cut down on scribal labor in litigation, to link evidence and judicial records more tightly, to keep civil justice open to the poor, to increase oversight of notaries and enforcement mechanisms, and to suppress abuses of the judicial system that were peculiar to notaries. The Capitoline notaries would feel their effects in both protocols and manuali.
Pius IV’s tribunal reforms from the 1560s had already displayed signs of concern about what it cost to litigate, and Paul V’s legislation on notarial instruments sought to make clients’ access to their business documents cheaper. Not surprisingly, Paul’s reforms of judicial acts aimed at a similar goal. They raised the limit on disputed amounts that had to be tried orally from two to five scudi and increased the number of words court notaries had to fit onto a page.184 The line unit had shifted from words and letters to syllables, and now court registra, the case records made for litigation involving substantial amounts of property, had to contain twenty-four lines, not twenty, with twelve syllables each.185
Paul V’s reforms contained novel if highly technical strategies for reducing notarial costs by economizing on the amount of writing notaries needed to do. In principle no document could be considered evidence if it were not written in the registrum or extractus of the case.186 In practice the reform legislation suggested many ways to meet this criterion without endless repetitive transcription, in effect allowing brief versions to “count” legally. Papal orders once entered in the registra could be referred to subsequently by the relevant folio number (no. 9).187 When a public instrument was submitted as evidence in a case, its content should be “succinctly” summarized, not reproduced in a full mundum version (no. 11). When swearing in multiple witnesses, notaries had to write out the oath only once (no. 13), and similarly, when mentioning the names of the judge or the litigants in the record, their titles had to be listed only one time (no. 14). The records of a case in one tribunal did not have to be rewritten if the case was transferred to another court (no. 1). These and similar provisions illustrate precisely why litigation had grown so expensive, and how the state hoped to alter writing practices so that it would become less so.
A second thrust aimed to preserve documents and make them easier to find. Here the consequence of many small measures was to intensify connections between the two sides of the notary’s writing activity—business and judicial acts. Mimicking the index required in the protocol, for the first time, a table of contents or rubricella was required for judicial registra. The rubricella, however, was more elaborate than the protocol’s table of contents; it was to serve as a thumbnail sketch of all the documentation in the proceedings, providing the tenor of each act and judicial decree, and a brief summary (reique gestae summam vel indicem) of the instrument, with the full date and names of the contracting parties.188 For the first time, notaries were instructed to keep witness interrogations and judicial sentences in separate volumes, neither as loose sheets or spiked piles (filze) nor as annotations in the manuale of judicial acts.189 With these additions, actuary notaries were henceforth responsible for maintaining three separate series of court records, as well as the filze of evidence submitted.
The reforms were very specific about how notaries were to handle evidence. It was not, or no longer, enough to scribble on the original summons and throw it into a desk (pulpitus). Notaries had two days to note documents turned over by the litigants in the manuale and thread them into a filza.190 Notable are the twin desires to privilege the manuale as the key location in which to record the fact that a given document had been submitted in the case and to keep this loose material together in a separate but orderly way. The quality of the material support, the paper itself, also drew more attention than ever before; there was no question of using anything other than paper, but it ought to be “good paper, not stained or absorbent.”191 Paper quality and penmanship were also particularly mentioned when notaries took the cheaper kind of witness testimony, “summary” questioning, as opposed to the more detailed (and costly) articuli and interrogatoria, as the questions from plaintiffs and defendants were called.192
Most striking were minute instructions about signing court documents and marking references to other documents on them. Clearly, Paul V’s legislation aimed to intervene in a network of linked documents to establish which officials were responsible for them. For example, the notary who received back a summons that had been delivered by the process server to the defendant must have the messenger sign it and must put his own name on it before entering it in his judicial acts (no. 22).193 Notaries were instructed to identify the public instrument or private receipt that underpinned a particular warrant194 by placing the date of the document on the warrant (no. 13). Conversely, the notary should record the judicial act terminating a financial arrangement (disdetta) on the original instrument setting up the partnership as well as in his manuale (no. 38).
The effects of the 1612 reforms were to connect business acts and judicial acts more closely together via new scribal practices of marking, referencing, and annotating. The reform commission strove to improve the judicial work of notaries by creating habits that later moderns would call “red tape” or “bureaucracy” but that could equally well be described as more efficient cross-referencing, indexing, and linking. For the Capitoline notary, who since 1586 was defined as a notary for the tribunal of the senator, the activities of drawing up instruments and of issuing warrants would entail constant sorting, searching, and filing between the two categories of writings.
As we have seen, the 1612 tribunal reforms broke with tradition to allow clients to see their notarial instruments for free and encouraged wider use of cheaper types of documentation, like simple copies. The poor who sought civil justice received relief in the form of a two-pronged policy. The poor themselves were allowed to have whatever court documents they needed for free, and their lawyers were permitted to view any documents at no charge.195 It would be up to the judge to decide whether an individual qualified as “poor,” and witnesses called to testify about poverty were to be interrogated at no charge.196
Enforcement had always been a weak link when the city, college, or papacy promulgated rules for notaries. It was rare to set up policing mechanisms, as the notarial college did in 1446 when it required notaries to bring their protocols each year to be stamped by its officers. If they said anything at all about enforcement, municipal or papal laws tended to put the job in the hands of the notary’s judge. By contrast, Paul V’s reforms emphasized enforcement, strengthening the judge’s disciplinary role and introducing novel types of control. They instructed judges to reject registra and extractus that the notaries had made improperly and to compel them to redo them. The reforms set severe penalties for noncompliance—fines of a thousand gold ducati and loss of one’s notarial office. To underscore their rigor, they authorized the two highest papal magistrates in the city, the auditor of the Camera and the governor of Rome, to proceed against lax notaries even without a complaint from litigants.197 Lest those in venal offices in nonpapal courts think they could escape, the reform legislation explicitly mandated enforcement by the senator, chief magistrate of the Capitoline court. “The senator and [his] other judges are required to make all who are under their jurisdiction and correction, all notaries, archivists, and others in the Capitoline tribunals, observe all the provisions of the law on pain of the prescribed penalties … even those notaries who are officeholders [i.e., owned their offices].”198 While judges were also to settle disputes over notaries’ fees, the papacy did not expect them to police all of these practices alone.199 Repeating a provision from the 1582 edict of the old notarial college, annual inspections of the bound volumes of judicial acts remained the privilege of the officers of the Capitoline notaries.200 The notaries still had some measure of collective responsibility for proper preservation of their judicial writings.
The 1612 legislation initiated a few apparently minor technical changes in writing practices that had far-reaching consequences for enforcement. No blank pages were permitted; notaries were ordered to draw a line across any blank page or part of a page in any notarial volume so that nothing could be added on the empty space.201 Tables of contents—the index for protocols and the new rubricella for court registra—were not just handy finding aids but a means of checking whether a document had been removed or added to the volume.202 Similarly, the receipt book, which was now required in order to record every exchange of fee for service in the notary’s office, could become supporting evidence if documents mysteriously disappeared, or appeared, in the manuale or protocol.203 It is not clear whether the papal reformers intended to control notarial fraud with these innovations, but they certainly had the effect of facilitating criminal investigations. To the evident goals of making all phases of litigation more open to scrutiny by higher magistrates and to improving justice by increasing transparency among lower court officials,204 we should add deploying new tools for detection of misdeeds by notaries.
The curial reform commission was not unaware that litigants felt, and were, vulnerable to the men whose pens provided the crucial stream of documents that made up a lawsuit, and they tried to name and suppress abuses peculiar to notaries. The very first regulation in the section on court notaries repeated an earlier law demanding that a vernacular list of fees for judicial acts be posted prominently in the notary’s office.205 Reflecting realities changed by venality, the 1612 laws added something new to the now centuries-old rule against notaries serving as procurators in their own tribunals; procurators and lawyers were for the first time prohibited from owning or investing in a notarial office.206
As mentioned earlier, the reforms were somewhat ambiguous about how much judicial writing the staff who worked for a court notary could perform. They elaborated on legislation of 1562, in effect allowing employees207 approved by the judge to take witness testimony and write up judicial acts. This indulgence was not extended to the Capitoline notaries, however, who were specifically enjoined to serve their judges personally, at least in their courtroom.208 Here the reformers were on thin ice. The prohibition against judicial writing by employees does not square with the 1582 edict of the Capitoline notarial officers, which regulated the conduct of sostituti in court or, more importantly, with Sixtus V’s founding legislation of 1586, which permitted substitutes.209
Finally, the commission attempted to curb the slippage of judicial powers to court notaries and to outlaw their many strategies for extorting money from litigants. Notaries were to read all summons aloud to the judge and not to issue decrees or warrants (literally, termini—that is, the deadline by which an action had to be completed) on their own authority. They were to obtain a judge’s signature for every mandatum and not to charge extra for doing so.210
Judicial writing gave notaries many opportunities to cheat litigants, and the reform legislation of 1612 furnishes a suggestive, if far from exhaustive, catalog of such practices. If they are paid for a copy of a court document, notaries must provide it.211 They were not to delay delivering the judge’s sentence on the pretext that they had not been paid.212 Forcing the defendant to accept copies of the evidence if he did not wish to have them was unlawful.213 Similarly, compelling litigants whose cases involved fewer than twenty-five gold ducati to put down a deposit for an extractus (copy) was illegal, because an extractus of the case was obligatory only when larger sums were in dispute.214 Legal grounds for distraining property included the sworn oath of plaintiffs that defendants were about to flee the city or were squandering the goods in dispute. Notaries were ordered not to accept such oaths from extraneous parties and not to issue distraints unless duly authorized.215 In their obsessive detail, these prohibitions painted a vivid picture of what contemporaries meant when they complained about the “abuses” of notaries.
The question of how effective the reform legislation of 1612 was lies beyond the bounds of this study, largely because the question presumes what would have to be proved—namely, that the papal commission had identified the correct problems in and solutions to the existing court system.216 Upon hearing in spring 1608 that the pope planned an overhaul of the civil tribunals, Rome’s news writers scoffed, recalling that investors in these offices had foiled earlier attempts at reform.217 Unlike the contemporary French monarchy, the papacy had maintained the role of notaries in courts, converting them into owners or lessors of a financial investment; it now had to deal with the consequences. Yet there is no question that something changed after 1612 and that those who spoke about notarial practices in the decades to come thought of this legislation as a turning point. “You used to be able to get a notary for two bits,” grumbled a procurator, bitter about the cost of the new laws.218 Down through the seventeenth century, voices from trial records, letters to papal officials, and reports of curial committees all refer back to the “riforma di Paolo V” or simply “la riforma.”219 With its unprecedented attention to the smallest pulleys and levers of the great machine of papal justice, the 1612 legislation indubitably accomplished at least one result—to raise awareness of how documents were handled among notaries, their employees, and their customers.
Paul V’s reforms climaxed almost three centuries of government intervention in notarial writing practices in Rome. From the sophisticated civil court procedure with its assumptions about the probative role of documents that we find in the 1363 city statutes to the minute techniques of cross-referencing demanded of notaries in the 1612 papal legislation, the hand of authority pressed ever more firmly on the notary’s pen. But the notaries who drew all this legislative attention were not the same in 1612 as they had been in 1363; they were fewer and more visible. The Capitoline actuary notary of the city statutes of 1363—indeed, of 1580—was difficult to identify. The notaries to whom Paul V addressed 154 articles of reform were easier to name; they were those who worked for Roman tribunals, all of whom by 1612 were “officials,” that is, holders of venal offices. Fitting seamlessly among them following Sixtus V’s restructuring were the notaries of the Capitoline curia. Control of notarial writing had increased exponentially since the fourteenth century, while a smaller number of notaries than ever before fell within the ambit of the law. New legislation focusing on judicial acts targeted those professionals who had been transformed via venality into court officials.
Of course, it did not have to happen this way. Judicial reform might have shunted notaries out of the tribunals and created new groups of officers to staff them, as it did in France. The fact that early modern notaries held their ground in the Italian courts may well reflect the continuing strong influence of the medieval jurists in the justice systems of the peninsula. Conversely, the notaries’ judicial role enhanced their association with public authority and the image of their writing as trustworthy.
In Rome, although civic draftsmen made a distinct contribution, the papacy was the prime architect of these legal changes, which were driven by its powerful identification with the judicial system and by its efforts to integrate and dominate the fractured mosaic of Roman courts for which it was itself responsible. In the long run, clients came to prefer the privileged few, the court notaries—or, as a seventeenth-century jurist put it, “the notaries with offices”—for their business acts as well as their lawsuits, but we must not let their dominance of the record obscure the broader reality.220 The writing practices of the bulk of notaries were of little interest to popes like Pius IV or Paul V who were bent on judicial reform. For legislation affecting all notarial documents, we have to look beyond the courts to the protracted and tortuous struggle to create archives for Rome’s notarial records.
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