In 1237, Cardinal Otto, at a Council in London, commented that public notaries did not exist in England, and so, did not recommend that a notary public should be required to authenticate instruments, but indicated that there should be more regular use of seals in the church. Not only archbishops and bishops, but all their officials should have seals that declared the title of the office and the institution to which they belonged.2
The dislike of notaries in England was also noted by Master Giovanni da Bologna, an Italian notary in the service of John Pecham, Archbishop of Canterbury, who observed the English reluctance to use notaries: ‘Italians, like cautious men, want to have a public instrument for practically every contract they enter into; but the English are just the opposite, and an instrument is rarely asked for unless it is essential’.3
This survey will explore this difference between England and Italy and in particular the use by notaries of wax seals in Italy. The notary is someone, qualified in the law, who talks to those involved, drafts a document, queries it (rogatio), prepares the instrument in his own hand, and authenticates it with his distinctive signum (also called a tabellion, but which will be referred to here as a sign or signum). The document was copied into a public register. In Italy, the development of the notarial system was due to influences from imperial chanceries, the needs of civic authorities, and the Papacy. Fully developed by the twelfth century, it was based in Roman law, while to the north of the Alps, where the legal system was based on common or customary law, the sealed document held sway. There was a considerable variety in legal knowledge and professionalism among notaries.4
Michael Clanchy proposed reasons for the northern resistance to the notarial system by pointing out different conventions for dating (instruments are often dated by the Papal rather than the Regnal year), and that the seal had greater personal authority by representing the person authenticating the document. However, he notes the English Statute of Merchants of 1285 came close to the notarial system. Debts were recorded before the mayor, and enrolled in special registers. The test of distinctive hand writing was acknowledged, since the bonds were to be enrolled in the hand of one of the town clerks who was known, and each bond was to be written in a hand that could be distinguished. Although no notarial sign was involved, the possibility of forging seals was recognised, as the seal would be made in two parts – one kept by the Mayor and the other by the Clerk. While this may show, as he suggested, that the virtues of the notarial system were appreciated by law makers in the thirteenth century, it may also simply mean that law makers were trying to avoid the difficulties created by documents that were un-enrolled and authenticated by a single seal.5