Notaries
The notarial profession
The term �notary’ has long applied to the category of men of law who are able to perform certain legal duties, most particularly the drafting of legal documents.
There are records of Scottish notaries from the thirteenth century, but the importance of the profession increased over the following centuries.8 This increasing prominence was caused by several factors, including their role in evidencing land transactions and the professionalization of legal work.9 By the early modern period, several acts of the Scottish parliament evidence the respect for notaries and the requirement for notaries to be present at certain ceremonies or transactions,10 and registration either judicially or by notaries was necessary for the validity of certain documents or transactions.11 This trend of increasing prominence of notaries evident in Scotland was not universal: W.W. Scott has suggested that it was not similarly present in England, largely owing to the different nature of legal practice and regulation of the profession by royal decree.12Scottish notaries were the professional draftsmen of legal business, familial documents and land transactions.13 They would keep copies of all the legal documents which they drafted in their personal protocol book.14 This book was granted to them by the Court of Session when they were admitted to the profession, and when they died it was returned to that Court or, if the notary lived in a royal burgh, to the provost and bailies of the burgh.15 This was, of course, in theory: John Durkan has previously observed that occasionally protocol books were destroyed, stolen or otherwise lost.16
Notaries might also hold one of several offices, including clerkships of towns, bishoprics and like institutions.
Harold Booton has shown that there was an increasing tendency in Aberdeen to appoint a notary as the official town clerk.17 For example, the position of town clerk (or alternatively �common scribe of the burgh’) was held in the burgh of New Aberdeen by the notaries John Kennedy, Thomas Mollisone and Walter Robertson consecutively from the decoupling of the office from the provostship in 1588 to at least 1640,18 and by the sheriff clerk, Patrick Chalmer, from 1643 until he died three years later.19 The neighbouring burgh of Old Aberdeen also hired notaries as the burgh clerk, which office was held from at least 1636 to 1643 by the notary William Wat.20The authority granted to clerks appears to have been considerable. On 22 May 1609, it was declared that the Old Aberdeen bishopric’s clerk, Mr Andrew Wat (very likely a relation to the aforementioned William Wat), �shall be clerk in times coming to the whole sasines [i.e., land transactions] within the bishopric of Aberdeen and such as is not given by him to be null and of no force, strent nor effect’.21 Neither that authority nor the office itself were irrevocably granted. The burgh clerk Alexander Sanderson was deprived of his office in 1654 �for some miscarriage of his office of clerkship being entrusted to him’.22
Likewise, there had been a continued tradition of notaries being appointed as clerks for local courts.23 In early modern Aberdeen, the clerkship of the highest court in the area, namely the sheriff court, was held by the notaries and brothers Patrick and John Chalmer in the 1630s and 1640s,24 and before them by Patrick’s father-in-law, the notary, advocate and latterly master of canon law (�canonist’) William Anderson.25 Meanwhile, the notaries John Mackie, Alexander Sanderson and John Davidson were appointed as clerks to the lands and barony court of Grandoun (now Grandhome).26 The notary William Elmslie was the clerk to the local barony court of Little Finersie in 1633,27 and the notary James Thomson was the clerk to the barony court of Leys in the early 1620s.28
Aberdeen’s notarial community
Booton has concluded that �[l]ater medieval Aberdeen possessed a small group of vigorous and ambitious notaries’.29 He identified that David Nicolson had risen to become �the premier Aberdeen notary’ by the 1520s.30 This man was the patriarch of the Nicolson legal dynasty, which rose to prominence in the seventeenth century with his grandsons, the Edinburgh commissary John Nicolson of Lasswade and the Aberdonian commissary and master of civil law (�civilist’) Thomas Nicolson of Cockburnspath, and his great-grandsons, the king’s advocate Sir Thomas Nicolson and the collector of practicks Thomas Nicolson of Carnock.31
The notarial community in seventeenth-century Aberdeenshire can be partially reconstructed from the records.
Around 110 men are mentioned as notaries in the sheriff court records between 1600 and 1660,32 but of course this does not capture information about the notaries whose documents were not cited in such a court action. This would include, for example, the commissary clerks Thomas and Robert Garden of Blairton and the notary, advocate and clerk depute Alexander Spalding.33The majority of these men are mentioned in relation to the production of legal documents involving local lands or transactions or their appearance in the sheriff court personally. They therefore appear to have had at least some involvement with legal practice within the region. Several are mentioned with sufficient frequency to suggest that they did a large quantity of work within the city and its immediate environs. During this sample period, 25 notaries were mentioned four times, 15 were mentioned five times, 8 were mentioned six times, 7 were mentioned seven times and 3 were mentioned more often. The three who were mentioned most frequently were, somewhat inevitably, the sheriff clerk Mr Patrick Chalmer and the substitute sheriff clerks John Hunter and Patrick Milne.34 It is therefore possible to speculate that around 20–30 notaries were working in the immediate environs of Aberdeen at any time.
Aberdeen’s notarial community thus appears to have been larger in the early modern period than it had been in the medieval period.35 It also appears to have been larger than, if nonetheless broadly consistent with, the contemporary notarial community in Elgin, which was (like Aberdeen) a north-east Scottish town which formed a regional centre as well as the seat of a diocese. Jane Thomas has suggested that by the mid-seventeenth century �there may have been between ten and twenty notaries active in the burgh at any one time’ although �they must frequently have acted for people from outwith the burgh as well as from within’.36 The size of these notarial communities also appears to have been broadly consistent with, if somewhat larger than, the 14 or more notaries which Elizabeth Ewan has suggested worked in sixteenth-century Edinburgh.37
The education of notaries
The importance of the work of notaries resulted in tight control of admission to that profession from an early period.
In 1469, an act of the Scottish parliament confirmed that the king could competently admit notaries through examination by the bishops of their �faith, good fame, science and loyalty according for the said office’, and ordained that the Holy Roman Emperor could no longer create Scottish notaries.38 Therebythe Scottish crown moved to take control of the admission of all secular notaries … This action can be seen in the context both of the strengthening of royal authority in Scotland and as part of increasing royal interference in town affairs.39
There were further attempts to improve the learning of notaries. In 1504, parliament required bishops to re-examine the capability, reputation and previous conduct of notaries within their diocese. Those who were found wanting and those found using �false instruments’ were to be punished, while those notaries who were found capable were �to be sent with their writings to the king’s highness, who will depute certain persons to examine them, and if they are suitable they are to be made regal, if they were not made regal before’.40 The task of testing the capability of notaries fell to the lords of session (the judges in the Court of Session), with the support of the clerk to the admission of notaries.41 Further attempts to regulate the qualification and capability of notaries were made by parliament in 1555 and 1563.42
In 1587, it was confirmed that the aspiring notary had to demonstrate their capability to the satisfaction of the lords of session. The aspiring notary had to show the standard of �his writing and congruity by forming of some evidence’, specifically one of several types of legal instrument. He also had to prove his �reasonable understanding in the Latin tongue’.43 Finally, he had to have spent seven years in service or apprenticeship to �one of the lords of session, commissaries, writers to the signet or some of the sheriff, stewart or bailie clerks of the shire or common clerks of the head burghs of this realm’.44 This was a much longer period in apprenticeship than had been spent by some notaries in the previous two decades,45 and is as long as Durkan found any notary had spent on his apprenticeship during the medieval period.46 However, this requirement of seven years’ service with one of the various professionals listed appears to have been reduced in 1595 to five years but spent specifically in service to a notary.47 John Finlay has observed, however, that even this shorter period �was no longer being insisted upon’ by the late seventeenth century.48
More will be said about the benefits of a period of apprenticeship below, but it is clear that, during those years, the aspiring notary would have practised drafting various kinds of documents and styles.49 An example of work by an aspiring notary in Aberdeen is found in a copy of the practick books of the notary, advocate and commissary clerk depute, Alexander Spalding.
The title page of the manuscript records that copying began on 19 November 1673 and was �wreiten with the hand off Patrick Whyt’. The same scribe records on a subsequent page (also styled as a title page) that he entered as a notary public on 16 December 1673.50It is noteworthy that some notaries would also have undertaken formal study of the arts at a university prior to their apprenticeship and admission to the notarial profession. W.W. Scott identified some Scottish examples of such men from the later fourteenth century,51 while John Durkan has found that in the fifteenth century:
[n]otaries in this period varied in status and qualifications... some describe themselves as bachelors of licentiates in degrees, one as a licentiate in civil or Caesarean law, while many claim to be masters of arts... One arts master added proudly that he was a graduate of Paris[.]52
Likewise, regarding Aberdeen specifically, Booton found that four of a sample of nine local notaries of the fifteenth and early sixteenth centuries had graduated at a university, including the aforementioned David Nicolson and the father and son John and Andrew Cadiou.53 This also appears to have been a pattern of education sustained into the later sixteenth and seventeenth centuries, including in the cases of the notaries and sheriff clerks William Anderson and John Chalmer.54