Recently, I was very interested to read a feature on the History of French Notaries on the Notaires de France website and then to compare their origins and history with ours.
The same must be read in the light of the relationship between France and England between the 11th century when England was invaded and conquered by the Normans and subsequently when the English conquered and ruled a large part of France, with Queen Mary losing England’s last possession in France and subsequent rivalry.
Notaries were in early times appointed by both the Roman Emperor and the head of the Roman Catholic Church, the Pope.
Many Civil Law Notaries claim that they are fundamentally different from us, Notaries Public/Notaries in England and Wales. Is this really the case? To ascertain whether this is true, I have completed a comparison between the histories of the Notaries/Notaries Public of England & Wales and Les Notaires de France.
As you are fully aware, England and France each have different legal systems. England along with the Commonwealth and also the USA and Ireland have the Common Law system, whilst France, much of Europe and the former colonies of certain European countries have a Civil Law system, based on the Code Napoleon.
On the other hand, as is very relevant to bear in mind, the histories of England and France have been intertwined over many centuries.
Both countries were conquered by the Romans and were, for several centuries, parts of the Roman Empire, the vast extent of which is depicted on this map.
The Normans led by William the Conqueror conquered England at the Battle of Hastings in 1066. For centuries after that, England was ruled by a French-speaking king and French-speaking Norman lords seized the land of the losers and ruled from a network of Norman castle-strongholds. French-speaking bishops took over the English church and rebuilt most of the churches in Norman style.
Many people are not aware of the extent of the Norman Empire, which extended as far as shown in pink on this map.
Subsequently, the English Crown ruled parts of France, effectively an English Empire in France.
William the Conqueror’s descendants were not only kings of England but also continued to rule much of France. This changed as each generation of warlords fought over what they inherited. Under the feudal system, the power of kings depended on the loyalty of the local warlords. Whilst lords on both sides of the Channel were semi-independent, the French king’s hold over his lords was much weaker. In 1339 the English Crown ruled all of the parts of France shown coloured pink on this plan.
In 1337 King Philip the Fair of France died and a long-running fight – the “Hundred Years’ War” – broke out over who was to succeed him. One claimant was his grandson, the English king Edward III. Edward won an important battle at Crécy in 1346 followed by the Capture of Calais in 1347, after an eleven-month siege.
After he captured that city, the king ordered the citizens to be massacred. He was, however, persuaded to spare the citizens and accepted a token of six men, provided they would volunteer for execution. Six courageous volunteers duly appeared, with ropes around their necks, in accordance with the king’s demand. When Edward’s queen, Philippa, saw the sight, she was moved with pity and begged Edward to relent, which he duly did. The event was commemorated in the Nineteenth Century by the sculptor, Rodin, with his great work, The Burghers of Calais.
Although he had spared the citizens’ lives, Edward evacuated the city and populated it with English people. Calais was used as a ‘staple’ that is a warehousing town for the distribution of English wool exports and a means of collecting taxes levied on wool. Calais was thought of as part of England and even sent representatives to the House of Commons. Over one of the gates of Calais were recorded these words:
‘Then shalle the frenchmen Calias winne
When iron and leade lyke corke shall swimme’.
Also, a little-known fact is that, in 1407, Dick Whittington was simultaneously Lord Mayor of London and Mayor of Calais.
Eventually, during the reign of Mary I, on the 7th January 1558, the French under Francis, Duke of Guise, took advantage of English negligence and took Calais, by then the only part of France under English rule. It is recorded that when the news of the loss reached Queen Mary, she exclaimed “When I am dead and opened, you will find Calais written on my heart’.
Accordingly, from 1558 onwards, the kingdoms of England and France were totally separate.
Nevertheless, the rivalry between France and England continued in the building of the French & British Empires during the 17th– 19th centuries, leading up to the Napoleonic Wars (1803–1815). This map of the World below shows in blue the extent of the French Empire and in dark red the British Empire in the 19th century
The Notarial Comparison
As one can see, the histories of France and England are surprisingly interlinked. Also as you will note below, the origins, history and development of the Notariats in both countries are surprisingly similar.
During the Roman Empire
In the 3rd century AD, under the late Roman Empire, officers whose rôles were similar to that of modern French notaries were already authenticating contracts on behalf of the State. The Roman colonizers introduced the concept into Gaul and “Gaulish notaries” started drawing up documents, particularly land censuses designed to establish the basis for property tax.
The profession disappeared after Rome fell to the barbarians, but reappeared in the 9th century by virtue of a capitulary issued by Charlemagne
During the Roman Empire
After the conquest of Britain in 43 AD and its incorporation into the Roman Empire, Notaries would have existed in Britain as part of the Roman rule. Britain was governed by the Roman Emperors until 410 AD.
After the withdrawal of the Romans in 410 AD, the profession appears to have disappeared from Britain.
The Middle Ages
At the dawn of the Kingdom of France. In 1270, shortly before setting off on his last crusade, King Louis IX, commonly known as Saint Louis, and King Philippe le Bel, in 1302, played an important part in developing the role of the French notary.
King Louis IX appointed 60 French notaries at Le Châtelet who worked on behalf of the Provost.
King Philippe le Bel extended the role of the French notary to all the lands governed by the sovereign.
The Middle Ages
Swardius, a Notary, acting as such, attested a grant of land from King Edward the Confessor (1042-1066) to the Abbot of Westminster.
Notaries definitely have again practised in England since Norman times.
Notaries appeared in England in the 11th and 12th centuries. They are believed to have been Italians appointed either by the Holy Roman Emperor or the Pope.
Although in 1237 it was noted by the Papal General Council that there were then no notaries in England, there is evidence that both papal and/or imperial notaries again operated in England shortly after that time.
The development of an independent English notarial profession began as early as 1279. Pope Nicholas III granted the Archbishop of Canterbury the power or ‘faculty’ to appoint three notaries within a year. A number of papal notaries were subsequently appointed.
By the fourteenth century, the English King and his courts were seeking to anglicise the profession
The 16th Century
From the Ordinance of Villers-Cotterêts to the age of “enlightenment”
France became a nation in the 16th century.
In 1539 King Francois Ier, by ordinance of Villers-Cotterêts prefigured how the civil law notary was to be organised: the instruments were to be written in French instead of regional dialects, the instruments were to be archived and a record of their existence was to be kept.
In 1597, King Henri IV made the French notaries keepers of the Seal of State.
The 16th Century
By an Act of Parliament, King Henry VIII transferred the power to appoint notaries to the Archbishop of Canterbury. The principal statute, the Ecclesiastical Licences Act 1533, delegated by Law to the Archbishop of Canterbury the right to grant Faculties to Notaries, which had previously been granted by the papal legates, a right which the King had taken for himself as part of the English Reformation.
The existence and authority of the English notary thus arise in direct succession from the papal authority.
French Revolution and 19th century
The French Revolution did not challenge the notarial institution.
During the final phase of the Consulate, life-consul Napoleon Bonaparte, under an Act dated 25 Ventôse year XI by the revolutionary calendar, gave French notaries a status the main features of which have remained unchanged.
Unlike France, England did not have a revolution and the 3 separate branches of the English Legal profession developed gradually over the years.
Parliament passed 2 Laws, which duly received Royal Assent, relating solely to the Notarial Profession in the 19th century, namely The Public Notaries Act 1801 and the
Public Notaries Act 1843
Confirmation that reliance is placed on the truth of the matters stated in Notarial Acts was confirmed in the oft-quoted words of Lord Eldon, “a Notary by the law of nations has credit everywhere”. (Hutcheon -v- Mannington (1802) 6 Vesey, Jun. 823). Indeed, the faculty which a notary receives on his appointment from the Archbishop of Canterbury concludes with the words “hereby decreeing that full faith ought to be given as well in judgment as thereout to the instruments to be from time to time made by you”.
The 20th century and up to the present
At the end of the greatest war in history, the Order dated 2 November 1945 gave French notaries their institutional bodies and founded the High Council for the French Notariat (Conseil supérieur du notariat).
The profession of notaire considerably developed since this period made particularly vital by the need to rebuild of France after World War II. The notariat has made a major contribution to this rebuilding in the legal and tax fields. The legal profession experienced dramatic expansion after the War as Politicians reformed most of France’s institutions or created new institutions in many different fields. At the same time as these developments, town planning regulations underwent dozens of one-off changes and two new areas of law emerged – that of protection of consumer rights and that of environmental protection. In short, the law has seen more changes in the last half-century or less than it underwent in the previous one hundred and fifty years. However, by investing significant technical and financial resources, the civil law notary has managed to cope with and adapt to all these changes.
In France today there are just 2 branches of the Legal profession – Notaires and Advocats
The 20th century and up to the present
Unlike the French Notarial Profession, Notaries in England and Wales continue to be primarily involved with International, rather than domestic Legal matters.
Nevertheless, the Profession has gone from strength to strength under the Faculty Office of the Archbishop of Canterbury (its regulator) and its 2 representative bodies (the Notaries Society and the Scriveners Society).
2 Acts of Parliament inter alia confirming the legal authority of Notaries in England and Wales have been enacted in the last 30 years, namely The Courts and Legal Services Act 1990 and The Legal Services Act 2007.
Furthermore, by Rule 32.20 of the Supreme Court of England and Wales Civil Procedure (Amendment No. 3) Rules 2005, it was confirmed that Notarial Acts and Instruments have full Probative force.
In England, today there are 3 branches of the Legal profession – Notaries, Solicitors and Barristers.
Note 1 :
The information about the French Notarial Profession in this article is as stated on the Official website of Les Notaires de France
Note 2 :
The sources of information about the English and Welsh Notarial Profession utilised in this article include
- “The English Notary” by Robert Turner M.A. (Cantab) LLD, FCIM
- Ecclesiastical Licences Act 1533, also known as the Act Concerning Peter’s Pence and Dispensations
- Brooke’s Notary, N.P. Ready, 14th Ed.
A comparison of the origins and the histories of Notarial Professions in France and England and Wales.
All in all, I was greatly surprised at the very similar development of the Profession in France and England and Wales – perhaps this was to be expected in view of the historical links between the countries and how their histories are intertwined.
Anthony W. Northey (Past President 2009-11 and Council Member)