The history
According to official historic tradition, the Latin notary made his first appearance around the end of the first millennium. It is impossible to pinpoint the exact decade or century, since the origin of the notarial profession, as many other institutions, was not self-generated but rather the result of the gradual evolution of an ancient writing profession, the members of which were called the tabellio and the notarius, devoted exclusively to the mighty, the rich, and the merchant class.
Some believe that on returning from the Crusades, St-Louis, the Good King, found his court congested with unresolved cases, justice in those days being the sole prerogative of the monarch. He took up his sceptre and quickly began hearing cases in order to return his subjects to their work or regular business. It soon became clear to him that many of the parties appearing before him had already agreed to terms of settlement.
To increase efficiency, he determined to handle litigious cases himself and refer to the clerks of his court all those parties who had agreed to settle their disputes. Instruments evidencing the terms of their agreement were drafted and sealed, with the legal authority of the king attaching thereto.
It has been said that 60 of these clerks were appointed as the first royal notaries. They were not merely clerks but persons who truly knew the legal system and the law, and who had the capacity to give proper legal counsel and advice as they drafted. Those drafts are believed to have been presented to the King before they became official.
We know for certain that in thirteenth-century Europe, under the influence of northern Italy's Scuola di Notariato, created in Bologna in 1228, the notarial professional was well and truly acknowledged and the need to submit instruments to the court for legal effect disappeared.
The appointment of notaries was a prerogative of monarchs, sovereigns, and the Pope, and the model quickly spread throughout Europe.
Finally, with the Napoleonic Loi 25 Ventôse année XI of 1803, the rules of the modern notarial profession were established, and were either imposed upon, or willingly adopted by, all other European countries.
The notarial profession was exported by European imperial powers to their colonies, including the so-called "New World," with one notable exception: the British Empire. This exception is the result of two fundamentally different major legal systems of law in the world: the civil law and common law.
England and the notary
Being an island, England (or the United Kingdom) developed its system of law independently from mainland Europe. The first notaries were introduced into England from continental Europe under papal authority, but in 1279, the Pope authorized the Archbishop of Canterbury to appoint notaries. Some two centuries later, relations soured between Henry IV and the Pope and one of the many consequences of religious reform was the transfer to the Crown, in 1533, by the British Parliament, of the power to appoint notaries. This power was later delegated to the Court of Faculties in 1801, which still appoints notaries today.
Notaries of the Latin type can be found today in England, though few in number (some forty) and all located in the "City." They act as a link between continental civil law institutions and the common law institutions of the United Kingdom. They are called "scriveners" and have legal training, and although they draft contracts (as do Latin-type notaries), they lack public-officer status and their writings do not have the probative value of Latin-type notarial instruments. Interestingly enough, their services are intended for foreign countries, where the instruments they prepare serve as attestations directed at judicial or other public authorities in the country where they are to be used.
As two different types of notary have developed since the end of the sixteenth century in European countries, England, and their respective empires, I will differentiate between them by designating the civil law notary of continental Europe as "Latin notary" and the common-law type as "notary public," even though many Latin notaries are designated as notario publico and notaio publico.
Quebec notaries
The first notary to settle in French North America was appointed by Louis XIV and arrived in 1663, more than 130 years after Jacques Cartier first discovered what is now known as Canada.
The law of the land was, of course, the French Coutume de Paris, traditional law derived from Roman and Germanic laws. Under the French colonial administration, notaries rapidly and inevitably became legal professionals and business advisers. In those days, only a few inhabitants of New France had any education or writing ability, and advocates (lawyers of litigation) were expressly forbidden to settle in the colony by royal interdiction, the King having a very low opinion of their usefulness. It is interesting to note that advocates were prohibited and barred from the land even during the first fifteen years of British administration, i.e. until 1775.
1760-1867
To understand the survival of the Latin notarial profession in Quebec, and only in that province in Canada, we must again look to history.
Events following victory on the Plains of Abraham were the direct consequence of an astonishing fact: the British had no definite plan in mind when they attacked Nouvelle France. Their action was merely part of a greater plan to curtail French hegemony in Europe. It is therefore no surprise that the British conquerors were few in number and almost one hundred years passed before English settlers outnumbered (thanks to the American revolution) French inhabitants.
The smell of boiling tea having begun to waft over the New England colonies, London quickly convinced itself, in 1770, that gently keeping French Canadians quiet and turning them into loyal subjects of the Crown should be the primary objective.
British sovereignty over Canada was sealed in 1774 by the Treaty of Paris, but London had agreed to allow the inhabitants to keep their Roman Catholic faith and French civil law. However, the British military refused to be subject to French seigneurial tribunals and it succeeded in obtaining an English court system. The end result was a colony governed by French civil law applied under the authority of English common-law courts of justice.
After the turmoil of the conquest, life continued uneventfully in the colony. French Canadians resisted an American military incursion, confirming London's foresight.
One last historical point before proceeding to the essence of the notarial profession: in 1847, Canada was divided into two parts, namely, Lower Canada (Quebec) and Upper Canada (Ontario). This was done to curtail the power of the larger French population and grant parliamentary government to the English loyalists settlers who were then in the majority in Upper Canada.
In 1866, the Parliament of Lower Canada revoked the old Coutume de Paris by enacting the Civil Code of Lower Canada, a virtual replica of the French Napoleonic Civil Code, which is still considered today to be a legal masterpiece and Napoleon's greatest achievement.
Then in 1867, the British North America Act was adopted by the British Parliament as the constitution of Canada. It united the three maritime colonies of Nova Scotia, New Brunswick and Prince Edward Island with Lower and Upper Canada. Of interest here is the fact that the Constitution gave jurisdiction over the ius commune to the provinces, and all but Quebec then developed English-type common law legal systems.