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FW: TMR 98.12.07, Murray, Notarial Instruments (Holman)
Poster: "Garrett, William" <WGarrett@sierrahealth.com>
> -----Original Message-----
> From: tmr-l@wmich.edu [SMTP:tmr-l@wmich.edu]
> Sent: Wednesday, December 16, 1998 3:06 PM
> To: tmr-l@rigel.cc.wmich.edu
> Subject: TMR 98.12.07, Murray, Notarial Instruments (Holman)
>
> James M. Murray. <i>Notarial Instruments in Flanders between
> 1280 and 1452</i>. Brussels: Academie royale de Belgique,
> 1995. Pp. xxvii, 347.
>
> Reviewed by Robyn A. Holman
> French Department, The College of Charleston,
> holmanr@cofc.edu.
>
>
> As the author states in his Foreword, the chief purpose of this
> publication is to present a collection of edited notarial texts
> with commentary. Thus the book consists of two major parts:
> Murrayıs 122 page introduction, which places the texts in
> context and discusses the organization and development of the
> notarial instrument in Flanders over the course of
> approximately one and one-half centuries; and 68 edited
> documents. There are also two indices, an index of persons and
> places, and an index of selected substantive points in the
> introduction and edition. The volume is complemented by several
> photographs of medieval documents.
>
> The introduction, entitled "The Public Notariate in Medieval
> Flanders," is made up of five chapters. The first chapter
> addresses the rebirth of the institution of the notary public
> throughout Medieval Europe with the rediscovery of Roman law.
> The first real attempt to revive notaries was made by
> Charlemagne who ordered every bishop, abbot and count to have
> one. The result was the creation of a class of administrative
> officials called <i>notarii</i>. Centuries passed after the
> Carolingian attempt at revival before Roman law was again
> studied. In the late 11th century various towns in northern
> and central Italy showed a renewed interest in Roman law, but
> it was particularly in Bologna where the study of the ancient
> law established itself and flourished. Foreigners were drawn
> to the University of Bologna which provided instruction in the
> new <i>ars notarie</i>. During the late 12th and early 13th
> centuries in the towns of northern Italy, notaries public began
> banding together to form guilds. Town administrations
> supervised the notarial guilds just as they did other urban
> guilds. The notary public differed from the ordinary civic
> notary in that the civic notaryıs authority to practice was
> limited to his place of residence, whereas the notary public by
> papal and imperial authority could practice anywhere. In Italy
> the pope and emperor began granting licenses to notaries to
> practice universally during the 12th century. The
> incorporation of notaries into self-governing guilds of laymen
> involved in secular business was characteristic of Italy and
> the Mediterranean regions in general, but in northern Europe
> where Roman law had been less influential and which found
> itself at a distance from such centers of notarial instruction
> as Bologna, the institution of the notary developed in
> different ways. In the north of Europe notaries public were
> unknown before the 13th century, and it was not until the
> latter part of the century that notaries became at all
> customary in England. Notarial instruments were not recognized
> by the English system of common law. In Germany, as in
> northern France, notaries were confined to a limited range of
> business which dealt mainly with church affairs.
>
> Chapter 2 of the introduction concentrates on the origins of
> the notariate in Flanders. The political, linguistic and
> ecclesiastic situation of the County of Flanders in 1300 was a
> complicated one. Flanders lay within two spheres of influence:
> the French Crown and the Holy Roman Empire; which included a
> corresponding language division, Romance and Germanic.
> Flanders had no episcopal see and four bishoprics divided
> Flemish territory among themselves. The bishopric of Tournai
> included the largest amount of Flemish land within its
> boundaries. As for secular jurisdiction within Flanders, the
> great Flemish towns, or <i>drie steden</i>, Ghent, Ypres, and
> Bruges, were "islands of privilege in the midst of seigneurial
> jurisdiction." Here aldermen exercised rights of high and low
> justice within the banlieu of the town. However, most of
> Flanders was ruled by seigneurial justice. The county was
> divided into various castellanies, each with its own bailiff,
> the personal representative of the count, and with its own bank
> of <i>échevins</i>, (aldermen) who were drawn primarily from
> the local nobility.
>
> Administrators and scribes provided a significant and
> successful alternative to notarial instruments. People who
> desired a public authorityıs seal simply sought out their
> nearby <i>échevin</i>. The Church was also in the forefront of
> granting documents. Thus before 1280 there were no notaries
> public in Flanders. The first recorded notary public, Henricus
> de Condé, notary by imperial authority, drew up a document on
> behalf of the count of Flanders in a case involving the abbot
> of Bergues-St.-Winoc in this year. By the late 13th century
> notaries public had established themselves in the service of
> the Bishop of Tournai. The first of these notaries were
> usually Italian born or educated and remained employed in the
> episcopal city of Tournai, although they journeyed to other
> cities within the diocese. Soon other town governments began
> occasionally using the services of the notaries. Most early
> notaries were unable to support themselves solely by their
> notarial services and most were associated with a local church.
> By 1310 there were notaries resident in Bruges, in Ypres, and
> probably in Ghent as well. Of the three cities, Bruges soon
> emerged as the most important notarial center.
>
> Chapter 3 provides background on the rise of the notariate in
> the Flemish Church. In the episcopal government of Tournai the
> development can be seen as a three step process. First,
> episcopal notaries without public authority served as
> representatives of the bishop or official. Later, a few
> notaries public performed certain well-defined tasks. Finally,
> by the early years of the 15th century, notaries public made up
> the majority of clerks in episcopal and officialsı chanceries.
> Simple utility was one of the major reasons leading to the
> adoption of the notaries public, as through their licenses by
> public authorities they enabled the bishops of Tournai and
> their officials to handle judicial business, especially outside
> of the city, without any special authorization. The use of
> public notaries also reflected the growing practice of the
> papal curia.
>
> The deacon of Christianity occupied the second tier of the
> Church judicial structure in Flanders. The deacon was at first
> a rival of the notary public in issuing legal documents.
> Although evidence is scarce, it is thought that, like the
> episcopal official, many deacons in important urban centers,
> such as the deacon of Bruges, employed public notaries in their
> courts. Some deacons themselves held notarial licenses, as did
> parish priests and chaplains. Monasteries, especially the
> Benedictine establishments, used notaries to a limited extent--
> usually for problems involving donations made to churches under
> the monasteryıs patronage. Some of the notaries employed by
> monasteries may have been simultaneously chaplains at these
> churches.
>
> Notaries public in civil employment is the topic discussed in
> chapter 4. Though the notary public was a latecomer to the
> county of Flanders, the large and prosperous towns of the
> region, as well as the rich agricultural areas controlled by
> the count of Flanders, would seem to provide a climate well
> suited to the growth of the notoriate. By the 11th century
> towns had gained the right to administer and judge their
> populations. By the early 13th, towns were ruled by groups of
> aldermen who came to perform many of the same functions as did
> the notaries public in southern Europe. As the wealth and
> power of the Flemish towns neared their peak in the late 13th
> century, most of the work of town government was entrusted to a
> body of city clerks called <i>stadsklerken</i> who assisted the
> aldermen in their roles as judges, administrators, and
> legislators. These clerks were sometimes employed as
> diplomatic couriers or as representatives of the town at church
> courts and were also called upon to draw up documents for
> townspeople who sought the townıs seal on a contract. Clearly,
> this provided serious competition for the notaries, who, though
> not excluded from town chanceries, tended to be employed only
> in exceptional cases where city clerks lacked the specialized
> skills required by the situation. An important area in which
> notaries public did serve on a townıs behalf was in cases heard
> before Christian courts.
>
> Law experts and notaries public entered the political scene
> around the same time. When in 1280 the count of Flanders
> intervened to settle a quarrel between the abbot of St. Winoc
> and some of his monks, what was particularly unconventional in
> the countıs intercession was the use of a notary public and a
> <i>legum professor</i>. Notaries, however, gained acceptance
> less readily into the permanent employ of the count than did
> the lawyer. The Flemish counts took advantage of the services
> of notaries to meet short-term administrative emergencies. It
> was above all in cases involving ecclesiastic courts that the
> notaryıs services became essential. The trend of limited or
> temporary use of notaries was only reversed during the second
> half of the 14th century.
>
> As employment in the countıs or townıs service was periodic,
> most notaries carried out tasks for individual clients. The
> most frequent occasion upon which a notary was employed by a
> layman was in the witnessing of pious gifts to religious
> organizations. There is little documentation to show whether
> or not notaries were employed by Flemish merchants in their
> business affairs, though the colonies of foreign merchants
> residing in Flemish towns formed a special group of notarial
> clients.
>
> The concluding section of the introduction is called "Typology
> and Diplomatics of Flemish Notarial Documents." The types of
> notarial documents used in Flanders fell into two categories:
> first, the notary acted in his own name; and secondly, an
> individual, corporation or group stated at the beginning of the
> document that it had requested the notary to draw up the
> document. Both types were completed with the notaryıs
> eschatocal (paragraph) and sign manual and could be augmented
> by one or more seals. The texts of chirographs (identical
> texts written on a single sheet of parchment which was then cut
> in two) could be inserted in the body of the document.
>
> The nature of Flemish society produced a notarial instrument
> which was distinct from the Italian model in both outward
> appearance and in uses of legal formulas. While in southern
> Europe the notarial instrument was meant to satisfy the rigors
> of business, the Flemish product was often used to lend dignity
> to a religious donation or to record events of particular
> importance. The Flemish document was ornate, almost always
> written on parchment, and with few exceptions, drafted in
> Latin. Notarial cartularies were rarely used in Flanders and
> were not considered the source of authentic records as was the
> case in Italy.
>
> A representative sample of notarial texts makes up Part II of
> this volume which the author calls "the edition." In a short
> technical introduction Murray and his collaborators for this
> portion of the work justify their choice of documents selected
> for inclusion by indicating their preference for original texts
> rather than copies, a desire to present examples of the changes
> in the form and use of the notarial instruments over time, and
> a consideration of the inherent significance of the documents
> themselves. The presentation of the texts in edited form was
> subject to the rules and guidelines of the Royal Commission of
> History (Belgium). Most of the texts included come from urban
> areas, with Bruges contributing more than any other Flemish
> city. While a few are written in the vernacular, most are in
> Latin. One genre of document that is little represented here
> is the last will and testament. According to Murray, Flemish
> notaries rarely assisted in the preparation of this type of
> document.
>
> The indices and photographs complete this work. The
> instructions for using the indices are misleading. The page
> references are to the introduction (not to the edition), and
> the edition references are indicated by document numbers (not
> pages) and by smaller-case line numbers.
>
> Unfortunately, careless formatting and editing errors are found
> throughout this volume. Words are artificially hyphenated when
> they are not line final (p. 14 autho-rity, ma-tured, p. 44 Bru-
> ges, p. 29 re-ceive); foreign words are not always italicized
> (p. 3 Tabelliones, p. 19 drie steden, p. 127 invocatio,
> narratio, corrobaratio); subtitles are incorrectly spaced (p.
> 48, p. 123); punctuation marks misplaced (p. 89 a semi-colon
> begins the line); and there are even occasional misspelled
> words (p. 315 gramatically) and sentence fragments (p. 33. "And
> lastly . . ."). Such mistakes may be tolerated in a doctoral
> dissertation, which this began as, but should have been
> eliminated before the presentation of the final product.
>
> Although typographical errors like those mentioned slightly mar
> the appearance of the printed copy, they in no way detract from
> the quality of the research. Murrayıs diligent investigation
> of this subject has resulted in a wealth of information for the
> reader on the preparation and authentication of written
> documents, the rise of the institution of the public notary,
> the professional careers of various individuals, and the
> different layers of power and authority in Medieval Flanders.
>
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