 The archaic Roman legal transaction was based on the constitutive value of oral rite, but as the economy and trade, and therefore negotiations in general, developed, the use of a document with an evidentiary function was introduced, even if the transaction continued to occur orally.
The original Roman document consisted of two or more wax tablets joined together to form diptychs or policies. On tablets, documents were usually written twice, resulting in a sealed internal letter and an accessible external one; It was only in the late era that the Greeks began to use papyrus.
Stylization could be objective, in which case we are talking about testatio, or subjective, in which case we are talking about Chirographum.
Testatio is a third party description of a transaction that has taken place, in which the descriptions are not signed by either the parties or the witnesses, who must solely be present at the transaction and affix their seals to the closure of the waxed tablets. If a dispute arose, they reported what they saw and checked the integrity of the seals before opening.
Chirographum is a first-person statement. There is also no provision for a signature, which is also included in Roman documents of the provincial environment.
In the Roman-classical era, a document had exclusively evidentiary value, without being superior to other means of evidence. The document develops its functions, moving from evidentiary to constitutive value, as evidenced by the evolution of the will per aes et libram, a typical form of classical law.
Nuncupatio is gradually reduced to the presentation of tables, with the specific provisions contained in the tables unknown until the document is opened.
However, a will has value from the moment of nuncupatio, and if it is lost, one can try to prove this, even if, with the reduction of the oral part to a ritual, the document acquires more and more weight, to the point that it becomes the only reason for owning a bonorum is not the absence of another way to find out the will testator.
The drafters of documents, which did not require this special technical knowledge, could be for the rich slaves or freedmen of their “family”, for the rest - masters of letters, scribes or notaries. Notaries served as stenographers, so their tables may not be sufficient for legal purposes as they are not clearly written.
It may happen that a person, under pressure of circumstances, dictates a legal document, in which case the document will be useless unless it is completely rewritten (military case).
Sometimes lawyers are even brought in for particularly complex documents, but for the most part, scribes are simply practitioners without deep legal knowledge.
Over time, technology improves, and specialization operates in parallel, the first specializing category being wills. This is due to the deep Roman tradition, according to which each "pater familias" took care of his property and his own burial with modest conditions.
However, the numerous possible testamentary provisions and complex rituals that had to be taken into account in a will made it extremely difficult to draft. There are forms used here, one of which was written in Latin on papyrus found in Egypt.
Before the Constitutio Anoniniana of 212 AD, there were very few Romans in Egypt, mostly soldiers and officials of Western origin. The same form, adapted to Roman law, shows its Western origin, dating back to the 2nd century AD.
The first clause provides for the establishment of a universal heir for all children born to the testator from his wife up to the time of his death, as well as a possible increase in the event of the premature death of any child.
The second point concerns the fidecommissioni libertates: since there is a lex Fufia Canina which limits the falsification of a will to the percentage of slaves, the heir is invited to intervene with those whom the testator cannot free due to the number of fugitives. What follows is a complex clause confirming the provisions made by the testator outside the will.
Finally, there are articles on malice and mancipatio familiae. As for fraud, it has a purely favorable meaning, since it expresses the desire for fraud and litigation to remain away from the will.
The mancipatio familiae records the transition from a stage in which everything occurs orally and solemnly, both the libral rite, in which the rite of mancipation is recognized, and nunucupation, the actual presentation of provisions, to another in which the rite librale was completed, replacing the same rite as mancipation , while nunukupation was reduced to the ceremonial presentation of tabulas. This position would disappear between the 3rd and 4th centuries AD, since it was now devoid of any meaning.
Another form concerns trust with loans, a type of real guarantee that develops over time. The formula written on a bronze tablet found at the mouth of the Guadalquivir dates back to the 1st–2nd century AD and is called the Baetica formula. It is clearly divided into two parts.
The first describes the transfer of property to be made through mancipatio, free of charge and as a guarantee, with reference to two possible objects, which could be a fund or a slave. The second establishes an agreement between the debtor and the creditor, declaring that this fund or this slave guarantees the loan, which can be obtained from a mortgage or personal guarantee.
In case of insolvency, the right of the creditor to sell the objects with compensation for its value is regulated. The other missing tablet would have contained other provisions governing new aspects.
The influence of peoples, especially eastern ones, which Rome absorbed in its expansion, contributed to the emergence of a notary in Rome. First, the growth of trade contacts between the Romans and pilgrims, then the extension of Roman citizenship in 212 to all inhabitants of the empire led, on the one hand, to placing negotiations under the protection of Roman authority, showing formal respect, on the other hand, to continue legal life in accordance with their mentality and traditions .
But the greatest misunderstanding remains the value to be attributed to a document which the provincials consider absolute, while the emperors continue to answer that it is relative, considering the reality of the facts. By now, in the 3rd century, a professional class of document editors had emerged, called tabellions. (Docusign esignature and sales - was carried out precisely through them.)
From Dominion to the Eastern Roman Empire
Under the Dominated, there is a change in institutions and, consequently, in the semantic meaning of the words denoting them. Notaries, who had the function of stenographers during the principality, became secretaries of high-ranking personalities. Starting with Aurelian, they acquire the role of imperial chancellors, completely losing their original function.
Notaries in the service of the emperor were organized into a schola, one of the most important in the palace. They are headed by the prince, who is tasked with maintaining a list of military units and main government institutions; he is considered superior to the proconsuls, and the secondicerium is considered equal to them.
They are followed by notaries and tribunes, equal to vicars, and servants and notaries, equal to consuls. These are still high-ranking officials who make up the Emperor's general secretariat, whose main task is to compile the minutes of the imperial council.
Notaries constitute the secretariats of the praetorian prefects and imperial vicars. The lower-level secretariats consist of extractors who were also formerly private stenographers.
In this sense, the exceptionalist replaced the word "notary" starting from the 3rd century, until during the reign it lost its original meaning and acquired the meaning of a civil servant of modest rank with the main function of verbalization.
Thus, exclusions are found in a wide variety of magistrates and military bodies, as well as in the service of municipalities to compose the “gestamunia”, as indicated in the Ravenna papyri. They can be organized into schools.
Starting from the 3rd century, the Church also had its own notaries, who served as stenographers. Their appearance can be associated with the trials of martyrs, when court documents had to be transcribed for the needs of the Church and it was not always possible to obtain copies from court stenographers unless a high price was paid.
With the religious world, at the same time as what was happening in the imperial sphere, the word came to mean secretaries in the main churches and monasteries.
Among them, the notaries of the Roman Church and the notaries of the Ravenna Church stand out, even if they do not reach the rank and duties of imperial notaries, despite the fact that they were sometimes entrusted with important tasks. Moreover, the notaries of the church survived and strengthened in the early Middle Ages, unlike the notaries of the feudal lords.
Negotiating documents could be drawn up by both secular and ecclesiastical notaries, especially if they corresponded to their official interests. The above is especially true for the latter, if we remember the natural desire of the Church to return the negotiating activity of the clergy to its sphere.
Tabellions draw up documents for personal interests, although the constitution of Leo of 472 uses the term notary, which, however, is understood in the Greek sense of tabellio. In the third century, tabellions replaced notaries in the private drafting of documents, which, however, could not, starting with Diocletian, avoid progressive bureaucratization.
The “tables,” organized in corporations, found themselves in a delicate relationship with the highest category of “curials,” which was also hierarchized and cemented. This problem had already been solved by Constantine in 316 with a law of which two significantly contradictory fragments survive.
Firstly, all decurions are prohibited from performing the duties of tabellions; in return, all “tabellions” invited to join the curia are not allowed to apologize. The second involves the case of the "decurion tabellioni", who, accused of lying, may be subjected to torture, losing the dignity of the curia, but continuing to bear the burden of the tax burden.
This contradiction is due to two opposing needs: the need to close professional categories and the need for financial gain for the depleted state treasury from increasing taxation of a wealthy category such as notaries.
The economic well-being of this corporation for the West is evidenced by the Ravenna papyri, in which one can note the relations of competition between the tabellions and curials. But in the East, where the situation is economically and legally better, there is a large number of papyri, mainly tabellions, coming from Egypt.
Between Leone and Anastasio there was a further regulation of the functions of the tabellio, in order to bring the "tabellio" itself to responsibility arising from illegal transactions. The Tabliones were jointly and severally liable in cases of registration of trade in eunuchs, alienation of church property, and transfer of property to obtain protection.
This duty of control over private negotiations has been strengthened by the introduction of ensuring, under heavy financial penalties, that the performance of acts for which it is mandatory takes place in accordance with the law. Thus, it turns out that both the board and the document are no longer strictly private, but not even public.
With the adoption of the Constitutio Anoniniana and the subsequent absorption of the provinces into the Roman system, the influence of written documentation became increasingly stronger compared to oral negotiations.
At the same time, it acquires an evidentiary force superior to other means against which the emperors oppose, asserting the reliability of any suitable means of proof. This resistance ceases with the dominated when the need for certainty prevails due to political and economic factors.
Konstantin is already introducing written editing for some stores, making it a formal requirement. By the first law, he subjects the validity of the donation to the compliance with three requirements: a written act, traditio solenne advocata vicinitate, declaration in the gestamunia.
The second law regulates the sale of real estate, especially rural real estate, by establishing requirements for solemn completion of the transaction in front of neighbors and inspection censualis, as well as requiring written documentation.
The ever-increasing evidential effectiveness of the written document determines two subsequent different approaches. Initially, a document has binding evidentiary value, since the party against whom it is directed has no choice but to submit to its effectiveness or demonstrate its falsity. Subsequently, the evidentiary value of the document is reduced with the requirement to confirm its value.
The imposition of fidem on a document will be achieved by comparison with other writings of the person who composed the document, by the use of at least three witnesses compared to the usual five oral documents, or by the manifestation of the insinuatia nei gesta that brought it into the public domain. Justinian's law recognizes the testimony of the tablio as sufficient to confirm the authenticity of the document.
These principles are collected and expanded by the decree of Justinian, but they are such as to prevent strictly confidential documents in which no witnesses are involved. The holographic testament, recognized by the West, was unsuccessful and was rejected by Justinian.
In this situation, the private document has enormous development thanks to the intervention of witnesses who put their signatures after the signatures of the parties, guaranteeing the authenticity of the document. A greater guarantee, almost absolute, is provided by an official document used by municipal magistrates.
The insinuation in the acts of a private document does not occur during the simple registration of the document, but is read out before the competent authority, therefore, at the request of the recipient, it is recognized by the issuer and the entire process is compiled in a technological report for inclusion in the “gesta”. A certified copy is subsequently issued and becomes an official document.
If this procedure was obligatory to resort to transactions that, although not innuendo, were still intended to be registered, then for those transactions, such as donations, in which it was obligatory, it was possible to proceed differently by making negotiated declarations directly before the authority, so that it can be recorded immediately.
This shortened form of advertising was evident in transactions such as adoption or counterfeiting in which the authority itself was involved. It was also possible to obtain their original copy, thereby confirming what was said above about the competition between curials and scoreboards.
An example of a transaction in which the insinuatio nei gesta is obligatory is the donation of Odoacer, dated 489, in which the king bestows some funds located in the region of Syracuse to his visiting domestic Pierio. The first act is the message of the royal donation, written by Marciano and signed by Andromaco, for which Pierio's representatives requested the insinuatio nei gesta of the municipality of Ravenna.
For this purpose, the message is read and a commission is sent to Andromache to recognize its authenticity. After the oral process has been drawn up, a certified copy is issued to Pierio's representatives, who travel to Syracuse, where they begin the traditional procedures for the individual funds in the presence of a representative of the municipal curia. What happened is recorded in the Syracusan Acts, including the Ravenna Acts themselves, and a true copy is given to the representatives going to Ravenna.
Another example of insinuatio nei gesta can be found in a papyrus from Ravenna containing a series of testamentary proposals dating from 474. Each individual discovery took place in due time before the municipal curia, and after the reading, a protocol was drawn up in the gesta of the municipality.
In the second half of the 6th century, the Church of Ravenna, for which conditions were included in the wills, asked for a complete authentic copy of the corresponding openings. This is due to the need to reorganize his archive, since after the devastation caused by the Gothic War, the archivist prepares a copy, and it is this that comes to us.
Finally, there is a case where documents were opened even before the Curia. The woman asks in writing to appoint a guardian for her children, the curials force her to acknowledge the authenticity of the request, then they proceed to appoint a guardian, who presents a guarantor, everything is recorded in the act.
Between the strictly private document of uncertain validity and the curial document of complex creation lies the tabellion document, which, being a publice confectum, offers a greater guarantee without requiring the intervention of authority.
The western tabular documents, preserved in the Ravenna papyri, date from the 6th-7th centuries, while in the eastern part, even if we assume the existence of tabular documents before the time of Justinian, the legislation of which seems to consolidate this practice, documents that actually began to take shape from the 4th century , refer only to Justinian.
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