Notary
NOTARY, or NOTARY PUBLIC. In Roman law the notarius was originally a slave or freedman who took notes (nolae) of judicial proceedings in shorthand. The modern notary corresponds rather to the tabellio or tabularius than to the notarius. In canon law it was a maxim that his evidence was worth that of two unskilled witnesses.
The office of notary in England is a very ancient one. It is mentioned in the Statute of Provisors, 25 Edward III. stat. 4. The English notary is an ecclesiastical officer, nominated, since the Peterpence Dispensations Act 1533-1534, by the archbishop of Canterbury through the master of the faculties (now the judge of the provincial courts of Canterbury and York), in order to secure evidence as to the attestation of important documents. All registrars of ecclesiastical courts must be notaries. A notary's duties, however, are mainly secular. " The general functions of a notary consist in receiving all acts and contracts which must or are wished to be clothed with an authentic form; in conferring on such documents the required authenticity; in establishing their date; in preserving originals or minutes of them which, when prepared in the style and with the seal of the notary, obtain the name of original acts; and in giving authentic copies of such acts " (Brooke, On the Office of a Notary, chap. iii.). The act of a notary in authenticating or certifying a document is technically called a " notarial act." In most countries the notarial act is received in evidence as a semi-judicial matter, and the certificate of a notary is probative of the facts certified. But English law does not recognize the notarial act to this extent. An English court will, in certain cases, take judicial notice of the seal of a notary, but not that the facts that he has certified are true, except in the case of a bill of exchange protested abroad.
The most important part of an English notary's duty is the noting and protest of foreign bills of exchange in case of nonacceptance or non-payment. This must be done by a notary in order that the holder may recover. He also prepares ship protests and protests relating to mercantile matters, and authenticates and certifies copies of documents and attests instruments to be sent abroad. The office of notary is now usually held by a solicitor. In London he must be free of the Scriveners' Company.
In Scotland, before the reign of James III., papal and imperial notaries practised until the 29th of November 1469, when an act was passed declaring that notaries should be made by the king. It would appear, however, that for some time afterwards there were in Scotland clerical and legal notaries the instruments taken by the latter bearing faith in civil matters. In 1551 an act was passed directing sheriffs to bring or send both kinds of notaries to the lords of session to be examined; and in a statute, passed in 1555, it was ordained that no notary, " by whatsoever power he be created," should use the office " except he first present himself to the said lords, showing his creation, and be admitted by them thereto." It does not appear that this statute vested the right of making notaries in the court of session ; but in 1 563 it was by law declared that no person should take on him the office, under the pain of death, unless created by the sovereign's special letters, and thereafter examined and admitted by the lords of session. Since then the Court of Session has in Scotland exercised exclusive authority on the admission of notaries in all legal matters, spiritual and temporal. The position of notaries in Scotland is somewhat higher than it is in England.
In the United States, notaries are appointed by the governors of the states, and their authority to act is limited to the state to which they are appointed. They are state officers, and their duties in the main are attesting deeds and other instruments, and taking affidavits and depositions; all such documents which are intended to be used in the federal courts must have the notarial seal affixed. They also protest bills of exchange, and in some states they have the powers of a justice of the peace.
In France, notaries receive all acts and contracts to which the parties thereto must give or desire to give the authenticity attached to the acts of a public authority; they certify the date, preserve the originals and give copies or duplicates. Notaries are nominated by the president of the republic on the recommendation of the keeper of the seals. They cannot act as notaries and practise as advocates, or hold any magisterial office, nor must they engage in business. Notaries are divided into three classes: those of towns which have a court of appeal ; those of towns which have a court of first instance; those of the other towns and communes. The first and second classes can practise wherever the jurisdiction of their courts extends; the third class only in their canton. They must obtain the sanction of the minister of justice should they desire to change from one district to another. They must serve an apprenticeship of six years (with exceptions) to a notary of the class to which they desire to belong. Every notary is bound in a certain sum fixed by the government as security for the due discharge of his duties. Since 1896 the remuneration of the more important classes of notaries has been regulated by law. Each district has a chamber of notaries, which exercises disciplinary powers over its members.
In Germany, notaries are appointed by the president of the courts of law and the minister of justice in their respective states; they carry on their profession for their own benefit, and do not, except in Wiirttemberg, receive any fixed salary, but take fees from the parties they represent. They may not refuse their services, save on good and sufficient ground. In some German states, notably Saxe-Weimar and Hesse-Darmstadt, there are no notaries. In Wiirttemberg, Baden, Bavaria, Alsace-Lorraine, Rhenish Prussia and Austria, they form a distinct class, while in the other German states they generally combine the notarial office with that of advocate. There is no code of rules for the whole empire, the new Burgerliches Geselzbuch leaving it to each state to frame its own regulations.
Note - this article incorporates content from Encyclopaedia Britannica, Eleventh Edition, (1910-1911)
