Sole Question: On the justice or injustice of the notary and the scrivener

AMONG the other persons who come together at a trial and take part in it are the Notaries and Tabellions, concerning whose creation and obligations the Jurists and the Summists differ, whom Sayrus reviews Lib. 12. cap. 15. Their principal obligation is to write and transcribe faithfully writings, instruments, testaments, proceedings, and other documents, since they act by the public authority of the Emperor, King, Republic, or Prince who creates them; therefore they must be honest persons, and for that reason one who is infamous in law or in fact cannot be a public Tabellion, per Panormitanus cap. cum dilectus. Felin. in cap. fraternitatis de baret. Alex. consil. 80. Couar. Lib. pract. qq. cap. 19. For other conditions see in those places.

SINCE, however, their justice is exceedingly necessary to the Republic, and is not always intact; therefore the laws in grave criminal cases do not commit the examination of witnesses to them alone; indeed the Judges themselves must be present, as is arranged in Authen. Apud eloquentissimum, Cod. de fide instrumentorum, et Authen. de testibus, et Cod. in causis civilibus, the same must be done, according to the text in Leg. Divus, ff. de testibus, et the Gloss on Leg. Hac consultissima, §. vult. Cod. Qui testamenta facere possint; nevertheless, on account of the many affairs by which Judges are distracted in civil cases of lesser moment, the examination of witnesses is committed to the Tabellion, an oath having first been taken before the Judge concerning the fidelity to be observed, cap. si qui testium, de testibus, cap. 2. de iudic. in 6. Leg. Ad egregias de iureiurando. Couar. Lib. 2. variarum, cap. 13. num. 10.

EXCELLENT was the law of the Athenians reported by Postellus de magistratibus Athenis, cap. 26. which had appointed six men as assistants to the Notaries and Tabellions, so that they might watch whether these men added or omitted anything. At least they ought to appoint someone. For men of that kind are of great authority.

IT IS DISPUTED here: what number of witnesses, at a minimum, can prevail against a Tabellion.

IT IS CERTAIN that he, as a public person, prevails over one witness, even one swearing an oath, that the writing is not true, Leg. si quis decurio, Cod. de falsis, cap. ad audientiam, de praescrip.

MANY say that two witnesses, above every exception, prevail. Others say three are required. See Fagundez lib. 8. cap. 44. Couarruvias L. 2. var. cap. 13. who seems to distinguish well: two witnesses suffice, if they are of those who appear in the writing.

THEY INQUIRE here: whether they, making false writings, or falsifying, or erasing something, are bound to restitution, as for a mortal sin committed against Justice.

ALL ASSERT so, with St. Bonaventure in speculo animae, cap. 2. per Fagundez Lib. 8. cap. 44. numero 6. et other places, and Sayrus Lib. 21. cap. 15. numero 12. Nor does it suffice that he not make false instruments; he must also not do forbidden things; such as a usurious instrument, or one against Ecclesiastical immunity.

FURTHERMORE, one who draws up a nuncupative testament for someone not of sound mind sins, and is bound to restore to the legitimate heirs, if he does this knowingly. Navar. man. cap. 25. num. 54. Baldus on Leg. Cod. de Sacros. Eccles. num. 71. says likewise, even if, corrupted by a price, he induces the testator to institute as heir someone other than the one the testator himself wished, he is bound to restitution. D. Antonin. 3. part. tit. 6. cap. 3. §. ult. Toletus l. 5. cap. 61. Sayrus num. 15.

He must also take care not to exact a price exceeding the norm. Then, not to exact a price for a thing for which no price is to be paid, such as for Ordinations, for Dimissories, or testimonials, if he has a salary; but if he has none, he cannot receive for individual dimissories or testimonials more than a tenth part of one gold piece, from the Council of Trent session 21. de reform. cap. 1.

Likewise, not to receive gifts and prices beyond the salary, if he obtains it. Of these things something has already been said above.

Moreover, the Notary must abstain from drawing up public instruments which demand a longer time on the more solemn days, on which the people are bound to be free for God; especially if they are contracts serving commerce. For this is gathered from cap. 1. de feriis; moreover this is provided in various places by Synodal decrees, as Bonalis notes in his Theologia morali, written in French, tom. 1. tract. 7. sect. 2. and he cites Suarez, Filliucius, and several others, in Bonacina disp. 5. quaest. unica, part. 2. num. 10. He excepts, however, the custom of the place, known and permitted to the Prelates, as also public necessity, to which you may add even private piety, as when it is done in favor of some poor person.

Finally the Notary must take care not to knowingly serve in writing usurious contracts; for by these he violates the oath he would take when called to his office; yet he is not bound to restore anything, since he received nothing by reason of usury. If, however, the debtor, compelled by force, binds himself to the Creditor by a usurious contract, and this becomes known to the Notary; he is bound, as Bonalis says ubi supra tract. 17. lect. 77., to restitution, since he cooperated in that wickedness, from which by reason of his office he ought to have abstained entirely.