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ALTA Law Research Series |
Last Updated: 16 August 2010
The Notary Public – the third arm of the legal profession
Noel Cox
Barrister and Lecturer in Law, Auckland University of Technology
(2000) 6 New Zealand Business Law Quarterly 321-335
The notary public is a survival of a civil law notion in the common law. The notary public’s duties are primarily involved with authenticating documents. Notaries are appointed under the authority of the Archbishop of Canterbury. Although some consideration was given in New Zealand a decade ago to the introduction of a Notaries Public Bill, no Bill was ever introduced. Though it may seem anomalous to have a type of New Zealand legal practitioner appointed by an ecclesiastical authority, let alone an English one, this is not now the primary factor which should influence any review of the office. Modern commercial practice, and especially electronic commerce, makes it imperative that any change takes into account international usage of the office.
1 Introduction
In civil law systems – those deriving their basic principles
predominantly from the laws of ancient Rome – a notary public
is a lawyer
practising in non-contentious business. More particularly, they are concerned
with the authentication of documents. Their
duties embrace authentication,
protesting bills of exchange, ship protests, and other notarial
acts.
Although the civil law never became the basis of the laws of England,
and consequently of New Zealand, its influence has always been
felt. This is
particularly true in commercial law. The international character of this field
of law meant that English law had to
take account of the civil law practiced
more widely on the continent of Europe. One consequence of this was the
survival, in England,
of the notary public. Appointed by ecclesiastical
authorities,[1] they
nonetheless had primarily secular duties, which were akin to those of notaries
in civil law countries.
Notaries were never very numerous, and their
relatively responsibilities minimised conflict with the common law
practitioners. Partly
for these reasons they were never subject to the same sort
of pressures that had been brought to bear on the practitioners of the
ecclesiastical laws by the common lawyers. They remained as a small but
important survival of civil law within the common law legal
system. Indeed, they
might be regarded as the third arm of the legal profession, alongside solicitors
and barristers.
Since 1533 notaries in England, and more recently, in New Zealand, parts of
Australia, and a number of other countries, have been
appointed by the Master of
the Faculties, a judicial officer of the Archbishop of Canterbury.
More than
ten years ago the Imperial Laws Application Act ended the application in New
Zealand of most imperial legislation. This
was regarded as being one of the
principal steps on the road to legal independence. Despite the enacting of this
legislation, notaries
public in New Zealand are still appointed in the name of
the Archbishop of Canterbury. Consideration was given at the time to enacting
the Imperial Laws Application Act to introduce a Notaries Public Bill, in order
to make provision for notaries public. In the event
nothing was done, and the
office remains unreformed. Yet the appointment remains sought after, with over
200 in practice today.
Reforms have now taken place in England and Wales,
reforms that affect, to some extent, the position of notaries in the
Commonwealth
still appointed under the jurisdiction of the Archbishop of
Canterbury. With the introduction of mutual recognition legislation for
legal
practitioners it may now be time to reconsider the position of the notary.
Growth in electronic commerce and the resultant
need for international
harmonisation also suggest that it is time the office was re-examined.
This
paper will look first at the nature of notaries. It will then examine their
duties. The mechanism of appointment will be reviewed,
both in the Commonwealth
generally, and in New Zealand specifically. To conclusion it will outline some
of the factors which must
be considered in any review of the office of notary
public in New Zealand.
2 Nature of a notary
An understanding of the office of notary is only possible within its
historical framework. Notaries
Public[2] are creatures
of the civil law, though they have a long been a feature of the common law
world, being mentioned in the Statute of
Provisors
1352.[3] They were
always ecclesiastical
officers,[4] appointed
from 1533[5] by the
Master of the Faculties to the Archbishop of
Canterbury,[6] in order
to substantiate evidence of human
activities.[7] All
registrars of ecclesiastical courts in the Provinces of Canterbury and York of
the Church of England must still be notaries,
however, a general notary’s
duties are primarily secular.
One field in which the influence of the civil
was especially influential in England was the Law Merchant, or lex
mercatoria. The modern commercial law grew out of the custom and usages of
the merchants, the Law Merchant. Some of these customs were written
down, and
became a code of international commercial customs. In the Statute of the Staple
1352-3[8] this was
recognised as part of the law of England, though it is unclear to what extent it
was systematised in England. Gerard de
Malynes regarded Law Merchant as
customary law approved by the authority of all kingdoms and not as law
established by the sovereignty
of any
prince.[9] Like the
canon law-based ecclesiastical law, it was the “law of all
nations”.[10]
However, the absence of a reception of Roman civil law, the relative
geographical isolation, and the commercial weakness of England
before the
sixteenth century all contributed to the law merchant developing differently in
England to on the
continent.[11] For
similar reasons the notary public has been left as something of a hybrid, a
civil law creature in a common law environment.
The appointment of notaries
passed to the Archbishop of Canterbury with the passage of the Ecclesiastical
Licences Act
1533-34,[12] also
known as the Peter Pence Act. This conferred the power, formerly vested in the
pope, to grant licences, dispensations and
faculties[13] upon the
Archbishop of Canterbury.
The notary is a civil lawyer practising in non-contentious matters, but does
not have the same relationship with his or her clients,
as does a solicitor. The
notary’s responsibility is to the transaction itself, rather than to the
client.[14] The notary
is at once the holder of a public office and a member of a distinct branch of
the legal
profession.[15] Their
office is of relatively slight importance, except in relation to foreign
transactions and, in England, certain ecclesiastical
matters.[16] The
notary is an officer of the law whose public office and duty it is to draw,
attest or certify under his or her official seal,
for use anywhere in the world,
deeds and other documents.
In foreign countries generally, that is those not
part of the Commonwealth, notaries are governed by special
legislation.[17] In
the United States of America they are usually appointed by the Governors of the
states (and, for the District of Columbia, by
the President of the United
States), and are often accused being of a low
standards.[18]
However, they are not empowered to act outside their own state, and often not
beyond their own
county.[19]
There
has been no attempt in the common law world to codify the precise nature of the
office of notary public as has been done in
continental Europe, Latin America,
and other parts of the world whose legal systems are based on principles derived
from Roman law.
The functions of notaries may however be gleaned from a number
of sources. The chief of these is custom, principally the law merchant.
To a
limited extent case law provides guidance, and some statutes deal with specific
aspects of their work.
3 Duties of Notaries
The act of certifying or authenticating is called the “notarial
act”, which may be either in a private or public form.
Private notarial
acts are when the notary certifies or attests a private document. The public
form, which is less common, are those
bills of exchange, ship protests, notarial
certificates, affidavits, statutory declarations, or powers of attorney, which
are, written
by the notary himself.
By virtue of his or her office, the
notary’s
signature[20] and
seal[21] is recognised
as being evidence of a responsible officer in most countries of the
world.[22] However,
the common law courts will take judicial notice of the seal of a
notary,[23] but not
that the facts that he or she has certified are
true,[24] except in
the case of a bill of exchange protested
abroad.[25]
Most
New Zealand notaries have lodged specimens of their signatures and seals with
the Ministry of Foreign Affairs and with the principal
foreign missions so that
if further consular verification of any document is required in that country the
details are already on
record.[26]
Depending
upon the nature of the document and the place where it is to be used, the
formalities of authentication will include attestation,
notarial authentication,
or authentication in special form, such as for ship protests. Governmental or
consular officials require
further
authentication.[27]
The
notary is required to keep a file of a year’s documents, which records all
notarial acts, and is often termed the protocol.
It contains originals of all
instruments that he or she makes in the public
form.[28] A notary
should also have a supply of suitable tape and adhesive
seals.[29]
The
notary’s evidential function is to attest the execution and signature of
documents. This includes receiving all acts and
contracts that must or are
wished to be clothed with an authentic
form.[30] He or she
authenticates the execution of documents, and issues authentic copies of
documents, establishing their dates, and
contents.[31] He or
she preserves originals or minutes of such documents which, when prepared in the
style and with the seal of the notary, obtain
the name of original acts. The
notary is also required to authenticate, and certify transactions relating to
negotiable instruments
in
general.[32]
The
notary is required to administer oaths and declarations for use in legal
proceedings, and, in England and Wales, to take evidence
as a commissioner for
foreign courts. He or she also swears
affidavits.[33] It is
the function of a notary to draw up (or note) and extend protests or other
formal papers relating to occurrences on the voyages
of ships, and happenings to
their crews and
cargo.[34] The notary
may also make and verify the making of translations from foreign languages into
English and vice versa.
The notary presents foreign bills of exchange for
acceptance and payment in case of non-acceptance or
non-payment.[35] This
must be done by a notary, at the request of the holder of the bill, in order to
recover the sum
owed.[36] The notary
may also note or certify transactions relating to negotiable instruments.
In
addition to the principal and quasi-public functions, notaries may draw, attest
or certify mercantile documents, deeds, contracts
and agreements and other
documents. This includes conveyances of real and personal property, and powers
of attorney,[37] in
English and in foreign languages, for use in the United Kingdom, the
Commonwealth and foreign countries.
The drawing of wills and other
testamentary documents is part of his or her work, as may be probate business.
Miscellaneous duties,
which class is open ended, include certifying that a
foreign official is duly
qualified;[38] and, in
England and Wales, attend upon the drawing of
bonds.[39] Most of
these functions are however either obsolete or very rare outside England and
Wales.
Although disparate duties fall to the notary public, they have as a
common element the ancient function to substantiate evidence of
human
activities. This is clear in the wording of a modern Declaration of Office of a
notary public appointed by the Master of the
Faculties:
I will faithfully make Contracts or Instruments for or between Party or Parties requiring the same and I will not add or diminish anything without the Knowledge and Consent of such Party or Parties that may alter the substance of the Fact; I will not make or attest any Act, Contract or Instrument, in which I shall know that there is violence or fraud; and in all things I will act uprightly and justly in the Business of a Public Notary, according to the best of my Skill and Ability.
Various officers are empowered to witness the taking of a declaration, statutory declaration, and similar evidentiary instruments.[40] Some of these, such as Justices of the Peace, and solicitors, are numerous. While there are in New Zealand some 7,000 solicitors,[41] and 6,000 Justices of the Peace, there are only 200 notaries public. Their role however is more restricted, being concerned with commercial transactions. More importantly, the notary is recognised by private international law in a way that the other officers are not. By the law of nations, the acts of a notary have credit everywhere.[42]
In many Commonwealth countries other officials can conduct the functions of a
notary. Commonwealth countries generally have Commissioners
for Oaths, and
similar officials.[43]
In New Zealand, the Oaths and Declarations Act 1957 (NZ) provides that
declarations made outside New Zealand, but within the Commonwealth,
may be taken
before a Commissioner of Oaths or a Solicitor of the High Court of New
Zealand.[44] It is
however in their role of authenticator of documents for non-Commonwealth legal
processes that the notary is most important.
In England, special
Commissioners for Oaths are not now
appointed.[45] Now,
every authorised person has the powers of a commissioner for oaths, as does
every general
notary.[46] These
authorised persons include any authorised advocate or authorised litigator,
other than one who is a solicitor, in relation
to whom similar provision was
made by s 81 of the Solicitors Act
1974.[47] They also
include any person who is a member of a professional or other body prescribed by
the Lord
Chancellor.[48]
Every solicitor who holds a practising certificate, authorised person,
general notary, and member of the Incorporated Company of Scriveners
admitted to
practise as a public notary within the jurisdiction of the Company shall have
the right to use the title “Commissioner
for
Oaths”.[49]
Similar legislation applies in the Canadian provinces and elsewhere.
The
Commissioners of Oaths exist primarily for Commonwealth countries. Outside the
Commonwealth a notary replaces the Commissioner
of Oaths. The great majority of
civil law countries require documents to be authenticated by a notary public,
and cannot be unilaterally
abandoned by any single
country.[50]
4 Appointment of Notaries
Under his inherent jurisdiction and later statutory authority, the Master of
the Faculties makes rules governing the admission of
notaries in
England,[51] and
elsewhere where his jurisdiction survives. Applicants, excepting those appointed
for ecclesiastical purposes only, are now required
to pass examinations in
notarial practice.[52]
General Notaries have been appointed in England and Wales under statute
since 1801.[53]
Depending upon the terms of their
Faculty,[54] they may
practise either in all places in England and Wales, including the area under the
jurisdiction of the Scriveners’
Company,[55] or in all
places in England and Wales outside that area. They will normally be solicitors
of the Supreme Court of England and Wales.
The previous requirement to serve a
five-year apprenticeship was ended in
1990.[56]
District
Notaries were appointed and regulated by statute from
1833.[57] They were
appointed by Faculty of the Master of the Faculties, for a specific geographical
area.[58] They need
not have served an apprenticeship. Their appointment had to be supported by
bankers, merchants, and similar people in business
in that area. They also had
to pass an examination in notarial practice. Normally, only solicitors were
appointed district notaries.
Since 1991 the distinction between general and
district notaries has ended, and they may now practice, as general notaries, in
all
parts of England and Wales outside the jurisdiction of the Scriveners’
Company.[59]
All
applicants for appointment as notaries public in England and Wales must be aged
twenty-one or over, and have satisfied the requirements
of one of four rules, as
being qualified for appointment as an Ecclesiastical Notary, Scrivener Notary,
Solicitor Notary, or other
Notary. Before commencing practice a notary must also
be duly sworn, admitted and enrolled in the Court of
Faculties.[60]
The
Master of the Faculties appoints ecclesiastical Notaries for the ecclesiastical
purposes of the Church of England within England.
There are few besides the
diocesan registrars and legal secretaries of
Bishops.[61] They are
not now appointed in Wales, nor are they required to serve apprenticeships.
Appointments are made as a matter of course
if the applicant is personally
suitable.[62]
Scrivener
notaries are subject to the independent jurisdiction of the incorporated Company
of Scriveners of
London.[63] By
charter, freemen of the company have the exclusive right to practise within the
City of London, the liberties of Westminster,
the borough of Southwark, or
“within the circuit of three miles of the said City” – three
miles from the Royal
Exchange.[64]
Any
solicitor of the Supreme Court of England and Wales, who, in addition to his or
her own professional qualifications, has passed
the examination in Notarial
Practice, may apply for admission by Faculty to practise as a notary public
anywhere in England and Wales
outside the Scriveners’
jurisdiction.[65]
The other notaries, those not freemen of the Scriveners’ Company,
practising English or Welsh solicitors, nor appointed for
ecclesiastical
purposes only, must have passed examinations in Land Law, Conveyancing, and
Trust and Succession, in addition to the
examination in Notarial
Practice.[66]
In
order to qualify for appointment as a notary, a non-solicitor applicant must
have, within the last five years, spent three years
in full-time study of law in
England and Wales. Alternatively, they must have spent full-time study in
preparation for such other
English and Welsh legal qualifications as approved by
the Master of the
Faculties.[67]
Once appointed, all notaries admitted to practise in England and Wales,
except ecclesiastical notaries, must undertake a period of
supervised
training.[68] This is
generally for two years, less any time spent in an apprenticeship under the
Public Notaries Act 1801
(UK)[69] or time spent
as a notary by a district notary appointed under the Public Notaries Act 1833
(UK).[70] Supervision
must normally be by a notary holding a current practising certificate, with five
years experience.[71]
Notaries must have a practising certificate as a solicitor, or from the
Court of Faculties, as a
notary.[72] Solicitor
notaries send their practising certificates to the Registrar for endorsement,
and other notaries apply for separate practising
certificates, with evidence of
adequate professional indemnity
insurance.[73]
The
Courts and Legal Services Act 1990 (UK) saw the emergence of the notarial
profession in England and Wales from a long period of
legislative neglect. This
was caused in part at least by the entry of the United Kingdom into the European
Community. The growing
international contacts of the legal profession, which had
led to an appreciation of the importance of the role played by notaries
in the
civil law jurisdictions of continental Europe.
The demand for notarial
services had also revealed an unequal geographical distribution (there were
shortages in the London suburban
area in particular). There was an apparent need
to bring the profession within a tighter regulatory framework analogous to that
existing
in the other branches of the legal profession.
Solicitors are
seeking appointment in England and Wales as notary public in increasing numbers,
and the profession there appears in
good
shape.[74]
5 Notaries in the Commonwealth
Unless excluded under dominion or colonial law, the Master of the Faculties
formerly had authority to appoint notaries public in a
dominion or
colony.[75] The
admission of notaries in the Commonwealth was governed specifically by the
Public Notaries Act 1833
(UK).[76] The
provisions of the Public Notaries Act 1801-43 requiring a notary to be a
solicitor did not apply
overseas,[77] nor need
a notary have a practising certificate as a solicitor, or from the Court of
Faculties.[78]
The
usual procedure followed is that the applicant lodges with the Court of
Faculties a memorial counter-signed by local merchants,
shipping companies,
bankers and other persons of substance, which show the local need of a notary
and the fitness of the applicant.
They also lodge their certificate of admission
as a solicitor. A fee accompanies the
application.[79] The
applicant, with the support of two other notaries
public,[80] who vouch
that the applicant is well skilled in the affairs of notarial
concern,[81] petitions
the Master of the
Faculties.[82]
The chief consideration for the approval of an application is whether there
is sufficient need in the district, regarding the convenience
of bankers,
ship-owners and merchants. The local society of notaries must be satisfied that
a need exists for an additional notary
in the area served by the
applicant.[83]
Priority is given, as a matter of practice, to an applicant within the same
firm, as a replacement in the case of the death of a
notary, or where a
practising notary is reducing his or her workload because of age or infirmity.
The Master of the Faculties continues to appoint notaries overseas in the
exercise of the general authorities granted by s 3 of the
Ecclesiastical
Licences Act 1533
(Eng).[84] In these
cases he is guided by local considerations of public
convenience.[85] The
Master continues to appoint notaries in the Channel Islands, Gibraltar, New
Zealand, and Papua New
Guinea.[86] In
Australia, the Master continues to appoint notaries in the states of Tasmania,
Victoria and Queensland, the other states having
passed legislation to enable
appointment to be made in those
states.[87]
The
Master of the Faculties also appointed notaries public in Hong Kong until 30
June 1997, though they were also registered with
the Supreme Court.
6 Notaries Public in New Zealand
Notaries in New Zealand continue to be appointed by the Master of the
Faculties.[88] There
is, however, some uncertainty as to the source of the authority for
this.[89] The
authority which is apparently relied upon is the Ecclesiastical Licences Act
1533 (Eng),[90] rather
than the Public Notaries Act 1833
(UK).[91]
Consideration was however given more than a decade ago to enacting a Notaries
Public Bill in New Zealand, in order to make provision
for a code for this
country in relation to notaries public.
The Report of the Law Reform
Committee on the proposed Imperial Laws Application Bill, issued in 1988, noted
that consideration was
being given to enacting a Notaries Public Bill in New
Zealand in order to make provision for a code for New Zealand in relation to
notaries public. It was anticipated that this code would not be in place in New
Zealand soon enough to fit in with the timetable
for the Imperial Laws
Application
Bill.[92]
The
Report therefore provided in the Imperial Laws Application Bill for the
pre-existing Bill for the position to be covered in the
meantime by the savings
provision in clause 10 (10) (f) of the
Bill.[93]
However,
when enacted, the Imperial Laws Application Act 1988 did not contain any savings
clause. As a consequence, the Ecclesiastical
Licences Act 1533
(Eng),[94] the Public
Notaries Act 1801
(UK),[95] the Public
Notaries Act 1833
(UK),[96] and the
Public Notaries Act 1843
(UK)[97] have all
ceased to have effect as part of the laws of New
Zealand.[98] None of
these Acts, nor the newer Courts and Legal Services Act 1990
(UK)[99] are in force
in New Zealand, which leaves the authority of the Master to appoint notaries for
New Zealand rather
uncertain.[100] Nor
has the proposed Bill been introduced.
However, under whatever authority they
may be appointed, notaries are not unknown to the statute law of this
country,[101] or of
other common law countries. The common law has always been ambivalent. The
notary is essentially a creature of the civil and
canon
laws.[102] The
notary public is relatively rare, and often ill-defined, in common law
jurisdictions.[103]
7 Conclusion
At present the notary public in New Zealand is an officer assigned by history
the function of authenticating and protesting certain
instruments. His or her
responsibility is to the transaction itself, rather than to the client. Although
New Zealand shares with
a considerable number of countries a common law system,
originally developed in the courts at Westminster, this is but one of the
two
great legal systems of the world.
The other is that of the civil law,
developed from the Roman civil law, and influenced especially by the Codes
Napoleon. This system
has also greatly influenced the common law, though the
extent to which Roman law was received in England has been disputed.
As one
empire, that of the pope, was abruptly ended in England in 1534, so another,
that of Great Britain, has now all but ended.
But whereas in the first case the
appointment of notaries was regularised immediately – by being transferred
to the Archbishop
of Canterbury, there has been no comparable change in the
appointment of notaries public after the decline of the British
Empire.
Largely this is because of the different nature of the political
evolution that led to the independence of the dominions. But it also
reflects an
added difficulty, one that was not considered in 1534. The process of changing
the process of authentication in New Zealand
would require an approach to every
independent country, to ensure that notarial acts receive due
recognition.[104]
For this reason, it seems likely that no such move to nationalise the office is
imminent.[105]
In
many civil law countries the notary is, as he was in England in the past, a
distinct official, unable to practise as a solicitor,
or in any profession but
notary. But these officials generally have a wider function than the notary does
in the common law world
today.[106]
The rapid growth of electronic commerce raises questions about the future of
the notarial profession
world-wide.[107] One
response, seen so far only in civil law countries, is the
“cybernotary”. These authenticate documents by electronic
means
through the internet, which can reproduce such documents almost instantaneously
anywhere in the
world.[108] The
future direction of this type of electronic media is uncertain, but the notarial
profession must be prepared to meet the demands
that it
brings.[109] And it
is important to remember that the notary’s responsibility is to the
transaction itself, rather than to the client.
With the introduction of the
Trans-Tasman Mutual Recognition Act 1997 (NZ), which came into force in New
Zealand on 1 May 1998, it should be possible to accord mutual recognition to
notaries appointed
in each jurisdiction. Since the methods of appointment in New
Zealand and the Australian jurisdictions are approximately evenly divided
between the Master of the Faculties and local appointments, there should be
little difficulty in according them mutual recognition.
With increasing
globalisation, there is a need to maintain, if not increase, the standardisation
of the notarial profession. The number
of countries which have notaries
appointed by the Master of the Faculties is not great, but they have commercial
significance out
of proportion to their populations. This common appointment
should not be abandoned lightly. Most importantly, no change should be
made
without considering the international implications, and the effects of
electronic commerce.
As officers appointed by the Master of the Court of
Faculties of the Archbishop of Canterbury, notaries public are a significant
survival
of imperial unity. But they are also an important relic of the former
universal papal authority. While the present situation should
be allowed to
continue unless a better could be devised, it would be necessary, were Australia
or New Zealand to become republics,
for statutory provision to be made for their
appointment, and for the regulation of their professional
activity.[110]
[1]Some were also
appointed by the emperor, though the legal standing of such notaries was never
entirely settled in England, as if never
acknowledged allegiance to the Holy
Roman Empire.
[2]Also
called notaries, or public notaries; In Latin, variously registrarius,
actuarius, or notarius. The modern notary corresponds rather to
the tabellis or tabularius, rather than to the notarius,
who was a scribe (and often a
slave).
[3]25 Edw III
stat 4 (Eng).
[4]In
canon law, a notary is a person legitimately constituted by ecclesiastical
authority to authenticate by his or her signature ecclesiastical
documents. By
the fourth Lateran Council (1215), every ecclesiastical court was required to
have a notary. In the Roman Catholic
Church, the notary is commonly in holy
orders. Lay notaries did not appear until as late as the fourteenth
century
[5]By the
Ecclesiastical Licences Act 1533 (25 Hen VIII c 21) (Eng). This Act has been
repealed so far as New Zealand is concerned, by
the Imperial Laws Application
Act 1988 (NZ). The relevant section, s 2, was repealed in England and Wales by
the Statute Law Repeals
Act 1969 (UK). Formerly, all notaries throughout Western
Christendom were appointed by, or with the authority of the Pope. In England,
some bishops received faculties to appoint notaries, while others were appointed
directly by the Pope. There was, however, no general
delegation to the
Archbishop of Canterbury, or any other bishop. The Clerk of the Crown in
Chancery no longer registers notaries
public, as formerly – Courts and
Legal Services Act 1990 (UK) s 57
(10).
[6]The
Commissary or Master of the Faculties is the head of the Court of Faculties, and
also, as Dean of the Arches and Auditor, Judge
of the Provincial Courts of
Canterbury and York. The authority to appoint notaries is found in the
Ecclesiastical Licences Act 1533
(25 Hen VIII c 21) (Eng), the Public Notaries
Act 1801 (41 Geo III c 79) (UK), the Public Notaries Act 1833 (3 & 4 Will IV
c
70) (UK), the Public Notaries Act 1843 (6 & 7 Vict c 90) (UK), and the
Courts and Legal Services Act 1990
(UK).
[7]The faculty
issued by the Office of the Master of the Faculties clearly sets out the
responsibilities of a notary. The wording of
a modern faculty appointing a
notary in England and Wales, and the accompanying Oath of Allegiance and
Declaration of Office are
as follows-
[ ... ], by Divine Providence, Archbishop of Canterbury, Primate of all England and Metropolitan, by Authority of Parliament lawfully empowered for the Purposes herein written: To Our Beloved in Christ, [ ... ], a literate Person now residing at [ ... ], Health and Grace: We being willing, by reason of your merits to confer on you a suitable Title of Promotion, do create you a Public Notary; previous Examination and all other Requisites to be herein observed having been had: And do out of Our Favour towards you, admit you into the number and Society of other Notaries, to the end that you may henceforward at [ ... ] and all other places in England and Wales whatsoever [clauses of limitation or exception, for instance “except within the jurisdiction of the Incorporated Company of Scriveners of London”] exercise such office of Notary, hereby decreeing that full faith ought to be given, as well in judgement as thereout, to the Instruments to be from this time made by you: the Oath and Declaration hereunder written having been by Us, or our Master of the Faculties first required of you and by you duly taken and subscribed.
The Oath of Allegiance
I, [ ... ], do swear by Almighty God, That I will be faithful and bear true Allegiance to Her Majesty Queen Elizabeth the Second, Her Heirs and Successors, according to Law.
The Declaration of Office
I, [ ... ], do solemnly, sincerely, and truly declare and affirm that I will faithfully exercise the office of a Public Notary; I will faithfully make Contracts or Instruments for or between Party or Parties requiring the same and I will not add or diminish anything without the Knowledge and Consent of such Party or Parties that may alter the substance of the Fact; I will not make or attest any Act, Contract or Instrument, in which I shall know that there is violence or fraud; and in all things I will act uprightly and justly in the Business of a Public Notary, according to the best of my Skill and Ability.
Given under the Seal of Our Office of Faculties at Westminster this [ ... ] day of [ ... ] in the year of Our Lord, One Thousand and nine hundred and [ ... ] and in the [ ... ] year of Our Translation.
[signed]
[LS.]
Registrar
[8]27 Edw
III stat 2
(Eng).
[9]Consuetudo
vel Lex Mercatoria, or the Ancient Law Merchant, London,
1622.
[10]Luke v
Lyde [1759] EngR 18; (1759) 2 Burr 882; 97 ER 614, per Lord Mansfield,
CJ.
[11]Leon
Trakman, The Law Merchant – The Evolution of Commercial Law,
Littleton, FB Rothman, 1983, p
23-26.
[12]25 Hen
VIII c 21
(Eng).
[13]The
Faculty is, in ecclesiastical law, a privilege or special dispensation, granted
to a person by favour and indulgence to do that
which by the common law he or
she could not do. This includes marrying without banns, or erecting a monument
in a church. These are
granted in the court of faculties, by the master of the
faculties (Magister ad Facultates), under the Ecclesiastical Licences Act
1533-34 (25 Hen VIII c 21) (Eng). Mocket’s Politia Ecclesiae
Anglicanae, London, 1617 places the appointment of notaries public
first among the archbishop’s power to dispense. In limited causes
Consistory
Courts may also grant faculties.
[14]Continental
notaries tended to assume more the position of a public official before whom
wills were proved and probate granted and
by whom official records were
maintained. None of these functions applied under the common
law.
[15]One of the
oldest officers of the law, the notary first developed in response to the need
for reliable authentication of documents
executed in one jurisdiction for use in
another.
[16]Mediæval
notaries public were akin to modern conveyancing solicitors, and present day
notaries are far more limited and specialised
in their functions, a fact
testified by the paucity of their numbers. For briefs accounts of the earlier
history of notaries see
Wilfrid Hooper, “The Court of Faculties”
(1910) 25 English Historical Review 670; and CR Cheney, Notaries
Public in England in the Thirteenth and Fourteenth Centuries, Oxford,
Clarendon Press,
1972.
[17]In many
cases a notary may not practise in any other profession, but there are some
important exceptions. Thus, in certain of the
German länder, the notaries,
called Anwaltsnotare, may also practice as legal counsel, or Rechtsanwälte.
[18]See also
Gerald Haberkorn & Julie Z Wulf, “The legal standard of care for
notaries and their employers” (1998) 31
John Marshall Law Review pp
735-748; Peter J van Alstyne, “The notary’s duty to meticulously
maintain a notary journal” (1998) 31 John Marshall Law Review 777-802;
Michael J Osty, “Notary bonds and insurance: increasing the protection for
consumers and notaries” (1998) 31 John Marshall Law Review 839-858;
Nancy Perkins Spyke, “Promoting the intermediate benefits of strict notary
regulation” (1998) 31 John Marshall Law Review 819-838; John T
Henderson & Peter D Kovach, “Administrative agency oversight of
notarial practice” (1998) 31 John Marshall Law Review 857-878;
William P Barrett, “Robber Stamps” (1987) 140 Forbes 144-145;
R Jason Richards, “Stop! ... go directly to jail, do not pass go and do
not ask for a notary” (1998) 31 John Marshall Law Review
879-902.
[19]In the
common law, though not Commonwealth jurisdiction of the Republic of Ireland, the
Chief Justice appoints notaries. Any person
of integrity and good standing may
apply for appointment, but must demonstrate knowledge of a relevant branch of
law. This is shown
either by possessing a professional qualification, or by
having relevant experience. There must also be evidence of a need for notarial
services in the county where the applicant seeks to practice. The professional
body is the Faculty of Notaries Public in Ireland;
s 10 Courts (Supplemental
Provisions) Act 1961 (Ireland).
[20]The
attestation and signature should be in ink rather than written with a ballpoint
pen, which is liable to fading.
[21]A notarial
seal is not strictly necessary, but is invariable used. If the notary is
armigorous, he or she may use their own arms on
the seal. Seals are usually
embossed, with an intaglio of case hardened steel and a relievo of copper. This
may be used with or without
a wafer.
[22]A court will
take judicial notice of Commonwealth notary’s seal and signature;
Brooke v Brooke (1881) 17 ChD 833. However, judicial notice will only be
taken of a local notary’s protest of a foreign bill as a result of s 51
(2) and s 95
(1) and the Second Schedule of the Bill of Exchange Act 1908 (UK);
Poole v Dicas [1835] EngR 665; (1835) 1 Bing NC 649; 131 ER 1267 [though this was
questioned in Brain v Preece [1843] EngR 818; (1843) 11 M & W 773, 775; [1843] EngR 818; 152 ER
1016 per Lord
Abinger].
[23]Cole
v Sherard [1855] EngR 864; (1855) 11 Exch 482; 156 ER
920.
[24]Appleton
v Braybrook (Lord) [1817] EngR 227; (1816) 6 M & S 34; 105 ER
1155.
[25]The
common law will take judicial note of a foreign notary’s protest abroad of
a foreign bill, but not of the seals and signatures
of foreign notaries when
authorised merely by foreign law; Chesmer v Noyes [1815] EngR 495; (1815) 4 Camp 129; 171
ER 42; Re Earl’s Trusts [1858] EngR 648; (1858) 4 K & J 300; 70 ER 126. It is
not necessary in New Zealand to protest an inland bill of exchange. However,
foreign bills must be noted by a notary public,
or, if no notary is available,
by a “householder or substantial resident of the place” – Bill
of Exchange Act 1908
(NZ) s 51 (2) and s 95 (1) and Second Schedule.
[26]Bill Laxon,
“The Notary Public” [1997] NZLJ
65.
[27]In 1961 the
9th Session of the Hague Convention on Private International Law included a
convention on legalisation. This provides
that for counties that are parties to
the Convention, a special procedure, called the apostille, merely requires
authentication by
diplomatic body. As throughout the Commonwealth, and in former
Commonwealth countries sharing the common law, the signature and seal
of a
notary proves itself, the apostille procedure is only required for foreign
countries; 9th Session of the Hague Convention on
Private International Law
(1961) cmnd 1582.
[28]The duty to
maintain a proper record of his or her notarial acts public and private is now
enshrined, in respect of notaries appointed
by the master of the faculties, in
the Notaries (Records) Rules 1991
(UK).
[29]A notary
is not legally required to initial every sheet of a document; Hamel v
Panet (1876) 2 App Cas 121; 46 LJPC 5. They will generally bind notarial
acts and their attachments securely together with ribbon or tape, the
notary’s wafer seal
being impressed over the ends of the ribbon or tape.
[30]Mauritius
requires legalisation by an independent authoritative source. Statutory
declarations made before a notary are acceptable
in judicial proceedings in
Commonwealth countries unless the local law has excluded the provisions of s 15
of the Statutory Declarations
Act 1835 (5 & 6 Will IV c 62) (UK). The Oaths
and Declarations Act 1957 (NZ) s 31 (1) declares certain English or United
Kingdom
Acts to have creased to have effect in New Zealand. These include the
Witnesses Oaths Act 1702 (1 Anne stat 2 c 9) (Eng), the Statutory
Declarations
Act 1835 (5 & 6 Will IV c 62) (UK), the Oaths Act 1838 (1 & 2 Vict c
105) (UK), the (Colonies) Evidence Act
1843 (6 & 7 Vict c 22) (UK), and the
Colonial Affidavits Act 1859 (22 & 23 Vict c 12) (UK).
[31]Geralopulo
v Wieler [1851] EngR 255; (1851) 10 CB 690; 138 ER 272; But only admissible as primary
evidence if it is a duplicate made at any time from the original or protocol in
the notarial book
– Permanent Trustee Co v Fels [1918] AC 879.
[32]The Bills of
Exchange Act 1882 (45 & 46 Vict c 61) (UK), and Bills of Exchange Act 1908
(NZ) the are two of the few statutes in
which a notary is mentioned as such, and
given a specific
duty.
[33]Including
those sworn for use abroad – Re Davis’ Trusts (1869)
LR 8 Eq 98; Re Lambert (1866) LR 1 P & D
138.
[34]A ship
protest is where a master of a vessel records that damage has occurred to ship
or cargo owing to bad weather or some accident
at sea. This record may be used
as evidence against the master or shipowner, but not in their favour;
Christian v Coombe (1796) 2 Esp 489; 170 ER 430; Senat v Porter
[1797] EngR 358; (1797) TR 158; 101 ER 908; The “Betsey Caines” (1826) 2 Hagg
28; [1826] EngR 1032; 166 ER 154; The “Hedwig” (1853) 1 Spinks E & Ad 19;
[1853] EngR 492; 164 ER 11.
[35]The
notary or his or her clerk makes a formal demand upon the drawee or acceptor for
acceptance or payment, as the case may be. Upon
refusal, the notary notes the
bill, by writing a minute on the face of the bill – his or her initials,
the date, the noting
charge, and a reference to the notary’s register. A
ticket or label is also attached to the bill, on which is written the answer
given to the notary’s clerk who makes the presentment. An example might be
“No orders” or “No effects”.
Before sending out the
bill, the notary makes a full copy of it in his or her register and subsequently
adds the answer, if any. The
noting of a dishonoured instrument may take place
on the day of its dishonour. It must take place not later than the next
succeeding
business day. When it has been duly noted, the protest may
subsequently be extended as of the date of the noting. A protest is a
formal
declaration by the holder of a bill of exchange, or by a notary public at his or
her request, that the bill of exchange has
been refused acceptance or payment,
and that the holder intends to recover all the expenses to which he or she may
be put in consequence
thereof. In the case of a foreign bill, such a protest is
essential to the right of the holder to recover from the drawer or indorser;
Geralopulo v Wieler [1851] EngR 255; (1851) 10 CB 690; 138 ER
272.
[36]The
requirement that a notary public be a witness is believed to be a survival of
the law merchant, or a concession to Continental
practice, itself derived from
the lex
mercatoria.
[37]Armstrong
v Stockham (1855) 24 LJ Ch 176; Hayward v Stephens (1867) 36 LJ Ch
(NS) 135; Re Eastern United Assurance Corporation (1928) 72 SJ
353.
[38]Ex p
Worsley [1793] EngR 1608; (1793) 2 H Bl 275; 126 ER 548; Omealy v Newall [1807] EngR 251; (1807) 8 East
364; 103 ER 382; Cole v Sherard [1855] EngR 864; (1855) 11 Ex 482; 156 ER 920; Abbott v
Abbott (1860) 29 LJ P & M 57; Re Magee (1885) 15 QBD
332.
[39]The
drawing of bonds is unlikely to form part of the responsibilities of a notary in
Australasia.
[40]s
9 of the Oaths and Declarations Act 1957 (NZ) confers upon notaries the
authority to administer oaths and statutory declarations.
Similar authority is
conferred upon Justices of the Peace, solicitors, Registrars or Deputy
Registrars of the High Court or of any
District Court, or “any other
person by law authorised to administer an oath”, any employee of New
Zealand Post Limited
or Post Office Bank Limited, officer in the service of the
Crown, or of a local authority from time to time authorised for that purpose
by
the Minister of Justice or any member of
Parliament.
[41]Including
those qualified to practise as barristers, but excluding barristers sole, who
cannot act as notaries public; Code of Ethics (1980) rule 5.14 [though
the equivalent rule is absent from the Rules of Professional Conduct for
Barristers and Solicitors (5th ed 1998), the Master of the Faculties does
not appoint barristers sole to the office of notary, and its nature is quite
distinct
from the day-to-day function of
counsel].
[42]Hutcheon
v Mannington (1802) 6 Ves 823, 824 per Lord Eldon, LC; [1802] EngR 159; 31 ER
1327.
[43]In New
Zealand these are appointed, under s 47 of the Judicature Act 1908 (NZ), by
individual High Court judges, by commission under
the Seal of the High Court, to
act in any country or place beyond the jurisdiction of the Court, for
administering and taking oaths,
affidavits or affirmations. Appointments are
published in the New Zealand Gazette, as are revocations for sufficient
cause (s 49).
[44]s
11.
[45]Courts and
Legal Services Act 1990 (UK) s 113 (2). Formerly, Commissioners for Oaths were
solicitors appointed by the Lord
Chancellor.
[46]s
113 (1).
[47]This
confers upon those solicitors with practising certificates, the powers of the
Commissioners for Oaths Act 1889, 1891, and s 24
of the Stamp Duty Management
Act
1891.
[48]Courts
and Legal Services Act 1990 (UK) s 113 (2).
[49]Courts and
Legal Services Act 1990 (UK) s 113 (10). Ecclesiastical notaries are excluded
from the
provision.
[50]In
the Commonwealth (excepting Mauritius – a civil law jurisdiction), the
signature and seal of a notary public proves itself;
Brooke v Brooke
(1881) 17 ChD 833.
[51]Courts and
Legal Services Act 1990 (UK) s 57
(4).
[52]Order of
Court 83 LS Gaz 670; General Notaries could take the examinations in land Law
and Trusts and Succession any time after completing two years articles,
and the
Conveyancing and Notarial Practice examinations after four years. All had to be
passed before an applicant could be appointed
a
notary.
[53]Public
Notaries Act 1801 (41 Geo III c 79) (UK).
[54]The Faculty
is, in ecclesiastical law, a privilege or special dispensation, granted to a
person by favour and indulgence to do that
which by the common law he or she
could not do. This includes marrying without banns, or erecting a monument in a
church. Faculties
are issued by the Master of the Faculties as officer
responsible for exercising the special jurisdiction of the Archbishop of
Canterbury,
as well as by the ordinary Consistory Courts in
England.
[55]Public
Notaries Act 1801 (41 Geo III c 79) (UK) s 13. Notaries must have the freedom of
the Scriveners’ Company to practise
within the area covered by the
jurisdiction of that company.
[56]Courts and
Legal Services Act 1990 (UK) s 57 (2). An alternative, for those not solicitors,
was a seven year apprenticeship for those
within the jurisdiction of the
incorporated Company of Scriveners of London.
[57]Public
Notaries Act 1833 (3 & 4 Will IV c 70)
(UK).
[58]From 1920
to 1990 the Lord Chancellor appointed those in
Wales.
[59]Public
Notaries (Qualifications) Rules 1991
(UK).
[60]Since the
passage of the Courts and Legal Services Act 1990 (UK) applications have been
made in accordance with the Public Notaries
(Qualifications) Rules 1991 (UK).
Rule 4 states that no person shall be admitted as a Notary to practise within
England and Wales
unless they have taken the oath of allegiance, and the oath
under s 7 of the Public Notaries Act 1843 (6 & 7 Vict c 90) (UK).
The
applicant must undertake to maintain adequate indemnity insurance.
If an
application is approved, the notarial Faculty is forwarded to New Zealand, and a
commission is issued to a Judge or other person
to administer the oath of
admission and the oath of allegiance. The commissioner is authorised to then
issue the Faculty. A notary
must be duly sworn, admitted and enrolled in the
Court where notaries are customarily sworn, admitted and enrolled – the
Court
of Faculties. The commission is necessary to dispense with this
requirement.
[61]The
following may apply to be appointed notaries for ecclesiastical purposes only
– the Registrars of Provincial Courts of Canterbury
and York, the
Registrar to the Archbishop of Wales, the Legal Adviser to General Synod of the
Church of England, the Legal Secretary
to the Governing Body of the Church of
Wales, the Registrar of any Diocese in England and Wales, and officers of the
Ecclesiastical
Court in Jersey or Guernsey. If a solicitor, the following are
eligible for appointment – the chapter clerk of any Cathedral
Church in
England or Wales, or deputy thereof; Public Notaries (Qualifications) Rules 1991
(UK).
[62]They are
appointed under the general authority of s 3 of the Ecclesiastical Licences Act
1533 (25 Hen VIII c 21)
(Eng).
[63]A London
notary must be proficient in one or more foreign languages, and familiar with
the principles and practice of foreign law;
Scriveners’ (Qualifications)
Rules 1991, made by the Court of the Scriveners’ Company under powers
preserved to it by
s 57 of the Courts and Legal Services Act 1990
(UK).
[64]The
scrivener notaries are members of the Society of Public Notaries of London, 10
Philpot Lane, London EC3M 8AA, NP Ready, Honorary
Secretary. This society,
established 1823, has only 28 members, indicating the relative rarity of the
appointment in
England.
[65]Public
Notaries (Qualification) Rules 1991 (UK) rule 7. The fee for admission is
£200; Notarial Faculties (Fees) Order 1982 Schedule
(UK).
[66]Each
examination, which may be partly written and partly viva voce, or wholly
written, is conducted in January and July each year,
and each paper is of a
duration of three hours. The Notarial Practice examination is in two parts,
covering evidence and authentication,
and Bills of Exchange, each of which lasts
90 minutes.
[67]Alternatively,
they must have been under an apprenticeship pursuant to s 2 of the Public
Notaries Act 1801 (41 Geo III c 79) (UK),
or have had service under articles of
clerkship with a solicitor in England and Wales, or been in practice or
pupillage at the Bar
in England and Wales. Lastly, the applicant must have been
in practice as a licensed conveyancer or as an Associate or Fellow of
the
Institute of Legal Executives, or have had such other employment in the business
of a notary, solicitor or licensed conveyancer
as the Master may approve; rule 8
Public Notaries (Qualification) Rules 1991
(UK).
[68]Notaries
(Post-Admission) Rules 1991
(UK).
[69]41 Geo
III c 79
(UK).
[70]3 & 4
Will IV c 70
(UK).
[71]Supervision
may be dispensed with. However, a newly appointed notary must also attend one
full day course or seminar approved by the
Master, on Bills of Exchange,
Notarial Practice and Professional Conduct. If the notary proposes to practise
in conveyancing, they
must also attend one full day course or seminar in
Conveyancing, approved by the Master, and there is an equivalent requirement for
those practising in
probate.
[72]This
is applied for annually to the Faculty Office, in accordance with the Public
Notaries (Practising Certificate) Rules 1982 and
1991 (UK). The current fee for
a certificate for a (English) solicitor notary and for other notaries is
£40. There is also a
£4 donation to the Notarial Contingency Fund;
Public Notaries (Practising Certificates) Rules 1982 (UK) rule 5.
[73]Solicitors,
Notary Public etc Act 1949 (12, 13 & 14 Geo VI c 21) (UK) s 1 (3), since
repealed by the Solicitors Act 1974 (UK)
s 89 (2) and Schedule 4; Public
Notaries (Practising Certificates) Rules 1982, 1991
(UK).
[74]In 1884,
when a Bill which would have absorbed the notarial profession into that of the
solicitors was debated, there were said to
be only 48 notaries public in
England, and of these, 33 where in the Scriveners’ Company area; HL
Debates vol 287, series 3,
columns 139-145. By the mid-1920s there were 500 in
all. By 1987 there were 739 general and some 400 district notaries, as well as
some fifty ecclesiastical notaries. NP Ready, Brookes’ Notary, 11th
ed, London, Stevens, 1992, p
19.
[75]Ecclesiastical
Licences Act 1533 (25 Hen VIII c 21) (Eng); the Public Notaries Act 1801 (41 Geo
III c 79) (UK), and the Public Notaries
Act 1843 (6 & 7 Vict c 90) (UK).
Section 4 of the last Act empowers the Master to make rules for the admission
and regulation
of Public Notaries to practise “either in England or in any
of Her Majesty’s foreign territories, colonies, settlements,
dominions,
forts, factories, or possessions”.
[76]3 & 4 Will
IV c 70
(UK).
[77]“No
person in England shall be created to act as a publick notary ... “. The
power of the Master of the Faculties to appoint
notaries is discretionary.
However, in order to qualify for appointment under the 1991 rules, an overseas
applicant will generally
have to satisfy the Master that they have had three
years suitable employment in the business of a notary, solicitor or licensed
conveyancer within the preceding five years. Only in exceptional cases will the
Master appoint as a notary someone who is not in
practice as a solicitor;
Bailleau v Victorian Society of Notaries [1904] P180, 185 (Court of
Faculties).
[78]Public
Notaries (Practising Certificates) Rules 1982, 1991
(UK).
[79]Public
Notaries (Qualification) Rules 1991 (UK) rule 9
(5).
[80]In 1931
the requirement was for only
one.
[81]They must
vouch for the applicant, that he or she is well known to them, is a loyal
subject of Her Majesty, of sober life and conversation,
known probity, learned
in affairs of notarial
concern.
[82]Public
Notaries (Qualification) Rules 1991 (UK) rule 9
(2).
[83]The local
societies maintain a caveat with the Court of Faculties which ensures that no
application will be granted without reference
to the
society.
[84]25 Hen
VIII c 21
(Eng).
[85]Bailleau
v Victorian Society of Notaries [1904] P180 (Court of Faculties); Fay v
Society of Notaries for the State of Victoria [1904] P15 (Court of
Faculties).
[86]Where
Australian-admitted notaries may also
practise.
[87]As
for example, New South Wales, where the Public Notaries Act 1985 (NSW) replaces
notaries appointed by the Master of the Faculties
with those appointed by the
Supreme Court (ss 4, 5). The Act is however careful to stress continuity (s
12).
[88]He sets
the criteria for appointment, although an indication of suitability of
applicants, and of the need for appointment of further
notaries is always sought
from the local Societies of Notaries. The requirements are, inter alia, that an
applicant must be a solicitor
in current practice with at least ten years’
post-admission experience, a significant portion of which must have been as a
partner or sole practitioner.
Current legal experience is considered
essential to deal with legal issues that are often involved in matters with
which notaries
must deal. A course of study prior to admission is also conducted
by a senior Notary in Auckland. To the best of the knowledge of
the President of
the Auckland District Society of Notaries, no persons other than practising
solicitors are appointed in New Zealand;
Letter from Robert Narev, President,
Auckland District Society of Notaries, c/- Glaister Ennor, Norfolk House, 18
High Street, PO
Box 63, Auckland, dated 13 March
1996.
[89]It must
also be remembered that the notary was a product of the civil and canon law, and
has never enjoyed the recognition of the
common
law.
[90]25 Hen
VIII c 21 (Eng). Section 3 of the Ecclesiastical Licences Act 1533 can be taken
to be applicable in New Zealand, in so far
as it allows appointments to be made
by the Archbishop of Canterbury by Faculty, by reference to the Public Notaries
Act 1843, although
the ecclesiastical law has no application even in settled
colonies – In re Natal (Lord Bishop of ) [1864] EngR 864; (1864) 3 Moo PCC NS
115 at 148, 152; [1864] EngR 864; 16 ER 43, 57; approved in Baldwin v Pascoe (1889) 7 NZLR
759, 769-70.
[91]3
& 4 Will IV c 70
(UK).
[92]Report
of the Law Reform Committee on the Imperial Laws Application (1988) Appendix
I,
18.
[93]Report
of the Law Reform Committee on the Imperial Laws Application (1988) Appendix
I, 18.
[94]25 Hen
VIII c 21
(Eng).
[95]41 Geo
III c 79
(UK).
[96]3 & 4
Will IV c 70
(UK).
[97]6 & 7
Vict c 90
(UK).
[98]No
indication was given in parliamentary debates on the various readings of the
Bill as to why this savings clause was dropped. In
fact, the Bill as enacted was
shorn of almost all its savings clauses, and makes a clean sweep of a number of
enactments, which,
like the legislation governing notaries, were still
applicable.
[99]During
the considerable consultation process leading up to the Courts and Legal
Services Act 1990, the British Government, and specifically
the Lord
Chancellor’s Department, took the view that the notarial profession in New
Zealand was well served by the Faculty
Office, and indeed the 1990 Act gave the
Master specific powers to continue to make rules and orders for the governance
of the profession.
The views received consistently over a number of years by
Registrar of the Faculty Office are that the connection with the Court
of
Faculties are is much valued and that the guaranteed independence of notarial
appointments in New Zealand is much appreciated
– PFB Beesley to author, 6
May
1997.
[100]There
need not be legal authority for the appointment of notaries for the notaries to
have legal standing. Public authorities and
officials must act intra
vires. They can only do what the law permits the to do, they cannot do what
the law forbids them to do. However, they do not necessarily
require legislative
authority to make appointments, unless the appointment in rem affects the
law. This is not the case with notaries. It is sufficient that there are
notaries, the means of appointing them is of
secondary
importance.
[101]They
are referred to in s 51 (2) and s 95 (1) and the Second Schedule of the Bills of
Exchange Act 1908 (NZ), s 242 of the Land Transfer
Act 1952 (NZ), and s 9 of the
Oaths and Declarations Act 1957 (NZ) (as amended).
[102]In the
strongly civil law-influenced Scots legal system, every solicitor may apply to
be appointed a notary, and most do so. No one
else can apply. The position of
Clerk to the Admission of Notaries Public in Scotland is now held by the
Secretary of the Law Society
of Scotland; Part IV of the Solicitors (Scotland)
Act 1980 as amended by the Solicitors (Scotland) Act 1988 and the Law Reform
(Miscellaneous
Provisions) (Scotland) Act 1990 (UK).
In South Africa, an
attorney, having passed the requisite professional examination, is eligible to
be enrolled as a conveyancer and
as a notary. They can continue as a notary so
long as they are enrolled on Roll of Notaries maintained by Provincial Division
of
Supreme Court in which he or she or she practises. The profession, of Dutch
origins, was first consolidated by the Attorneys Notaries
and Conveyencers
Admission Act 1934; Bowler v Registrar of Deeds 1939 AD
401.
[103]In
Northern Ireland, notaries are appointed by the Lord Chief Justice of Northern
Ireland; s 112 Judicature (Northern Ireland) Act
1978 (UK). They are not
required to be legally trained, although solicitors may be appointed but must
show need. In Bermuda the Supreme
Court appoints them. In the Canadian provinces
every Barrister and Solicitor is ex officio a notary public and Commissioner for
Oaths,
though not all notaries are legally trained. In St Lucia barristers and
solicitors may practise as Notaries Royal. The Lieutenant-Governor
appoints Manx
notaries.
[104]The
process of whereby a notary’s signature and seal is certified to be
genuine is known as
legalisation.
[105]Bill
Laxon, “The Notary Public” [1997] NZLJ
65.
[106]See, for
example, Henry Dyson & Stephen Smith, “What does a
“notaire” do?” (1998) 142 Solicitors Journal 332; Pedro
A Malavet, “The foreign notarial legal services monopoly why should we
care?” (1998) 31 John Marshall Law Review
945-970.
[107]Paul
M Hummer, “Legal issues in electronic commerce in the insurance and
reinsurance industry” (1997) 64 Defense Counsel Journal 246-259;
Mary F Theofanos & John T Phillips, “Digital signatures: Signing and
notarizing electronic forms” (1994) 28 Records Management Quarterly
18-24.
[108]Bill
Laxon, “The Notary Public” [1997] NZLJ
65.
[109]Vincent
Gnoffo, “Notary law and practise for the 21st century: suggested
modifications for the Model Notary Act” (1997) 30 John Marshall Law
Review 1063-1097; Karla J Elliot, “The notarial seal: the last vestige
of notaries past” (1998) 31 John Marshall Law Review 903-910; Peter
Ahlers, “The impact of technology on the notary process” (1998)
31 John Marshall Law Review
911-926.
[110]If
only because they must at present be “a loyal subject of Her
Majesty”, and take the oath of allegiance; Public Notaries
(Qualifications) Rules 1991 (UK) rule 9 (2).
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