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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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