A notary public (or notary or public notary ) is a public officer constituted by law to serve the public in non-contentious matters usually concerned with estates, deeds, powers-of-attorney, and foreign and international business. A notary's main functions are to administer oaths and affirmations, take affidavits and statutory declarations, witness and authenticate the execution of certain classes of documents, take acknowledgments of deeds and other conveyances, protest notes and bills of exchange, provide notice of foreign drafts, prepare marine protests in cases of damage, provide exemplifications and notarial copies, and perform certain other official acts depending on the jurisdiction. Any such act is known as a notarization . The term notary public only refers to common-law notaries and should not be confused with civil-law notaries.
With the exceptions of Louisiana, Puerto Rico, Quebec, whose private law is based on civil law, and British Columbia, whose notarial tradition stems from scrivener notary practice, a notary public in the rest of the United States and most of Canada has powers that are far more limited than those of civil-law or other common-law notaries, both of whom are qualified lawyers admitted to the bar: such notaries may be referred to as notaries-at-law or lawyer notaries. Therefore, at common law, notarial service is distinct from the practice of law, and giving legal advice and preparing legal instruments is forbidden to lay notaries .
Overview
Notaries are appointed by a government authority, such as a court or lieutenant governor, or by a regulating body often known as a Society or Faculty of Notaries Public. For a notary-at-law, an appointment is usually for life, but lay notaries are commissioned for a briefer term with the possibility of renewal. Appointments and their number for a given notarial district are highly regulated. Since the majority of American notaries are lay persons, however, commissions are not regulated, which is part of the reason why there are far more notaries in the United States than in other countries (4.5 million vs. approx. 740 in England and Wales), the other reason being that in England and Wales and many other common law jurisdictions in practice only matters with an international element need to involve notaries, and almost all notaries are also qualified lawyers. By contrast, U.S. and Canadian notarial functions are applied to domestic affairs and documents, and fully systematized attestations of signatures and acknowledgment of deeds are a universal requirement for document authentication.
For the purposes of authentication, most countries require commercial or personal documents which originate from or are signed in another country to be notarized before they can be used or officially recorded or before they can have any legal effect. To these documents a notary affixes a notarial certificate which attests to the execution of the document, usually by the person who appears before the notary, known as an appearer or constituent . In places where notaries-at-law are the norm, a notary may also draft legal instruments known as notarial acts which have probative value and executory force as would any lawyer's writing. Originals or duplicate originals are then filed and stored in the notary's archives, or protocol .
Notaries in some countries and states are required to undergo special training in the performance of their duties. Many must also first serve as an apprentice before being commissioned or licensed to practice their profession. In many countries, even licensed lawyers, e.g., barristers or solicitors, must follow a prescribed specialized course of study and be mentored for two years before being allowed to practice as a notary. Notaries public in the United States, of which the vast majority are lay people, may not engage in any activities that could be construed as the practice of law unless they are also qualified attorneys.
In bijuridical jurisdictions, such as South Africa, the Office of notary public is a legal profession with educational requirements similar to those for lawyers. Many even have institutes of higher learning who offer degrees in notarial law.
History
For a more detailed account, see Civil-law Notary.
Notaries Public (also called "notaries", "notarial officers", or "public notaries") hold an office which can trace its origins back to ancient Rome, when they were called scribae ("scribe"), tabellius ("writer"), or notarius ("notary"). Their work would later be transcribed correctly in its entirety by a calligraphus. They are easily the oldest continuing branch of the legal profession worldwide.
The history of Notaries is set out in detail in Chapter 1 of Brooke's Notary (12th edition):
Common law jurisdictions
The duties and functions of notaries public are described in Brooke's Notary on page 19 in these terms:
A notary, in almost all common law jurisdictions other than most of North America (which, it would be remiss to omit, accounts for most of the population of the world under common law), is a practitioner trained in the drafting and execution of legal documents. Notaries traditionally recorded matters of judicial importance as well as private transactions or events where an officially authenticated record or a document drawn up with professional skill or knowledge was required. The functions of notaries specifically include the preparation of certain types of documents (including international contracts, deeds, wills, and powers of attorney) and certification of their due execution, administering of oaths, witnessing affidavits and statutory declarations, certification of copy documents, noting and protesting of bills of exchange, and the preparation of ships' protests.
Documents certified by notaries are sealed with the notary's seal or stamp and are recorded by the notary in a register (also called a "protocol") maintained and permanently kept by him or her. These are known as "notarial acts". In countries subscribing to the Hague Convention Abolishing the Requirement for Legalization for Foreign Public Documents only one further act of certification is required, known as an apostille, and is issued by a government department (usually the Foreign Affairs Department or similar). For other countries an "authentication" or "legalization" must be issued by the Foreign Affairs Ministry of the country from which the document is being sent or the Embassy, Consulate-General, or High Commission of the country to which it is being sent.
Information on individual countries
England and Wales
After the passage of the 1533 Act, which was a direct result of the Reformation in England, all notary appointments were issued directly through the Court of Faculties. The Court of Faculties is attached to the office of the Archbishop of Canterbury.
In England and Wales there are several classes of notaries. English notaries who, like solicitors, barristers, legal executives and licensed conveyancers, are also commissioners for oaths , also acquire the same powers as solicitors and other law practitioners, with the exception of the right to represent others before the courts (unless also members of the bar or admitted as a solicitor) once they are licensed or commissioned notaries. In practice almost all English notaries, and all Scottish ones, are also solicitors, but typically do not perform such services.
Commissioners of oaths are able to undertake the bulk of routine domestic attestation work within the UK, and many documents, including signatures for normal property transactions, do not need professional attestation of signature at all, a lay witness being sufficient.
In practice the need for notaries in purely English legal matters is very small; for example they are not involved in normal property transactions. Since a great many solicitors also perform the function of commissioners for oaths and can witness routine declarations etc (all are qualified to do so, but not all offer the service), most work performed by notaries relates to international matters in some way, and documents needing to be used abroad, and many of the small number of English notaries have strong foreign language skills and often a foreign legal qualification. The Notaries Society gives the number of notaries in England and Wales as "about 1000," all but 70 of whom are solicitors.
There are also Scrivener notaries, who get their name from the Scriveners' Company; until 1999, when they lost this monopoly, they were the only notaries permitted to practise in the City of London. They used not to have to first qualify as solicitors, but they had knowledge of foreign laws and languages.
Currently to qualify as a Notary Public in England and Wales it is necessary to have earned a law degree or qualified as a solicitor or barrister in the past five years, and then to take a two-year distance-learning course styled the Postgraduate Diploma in Notarial Practice from the University of Cambridge. At the same time, any applicant must also gain practical experience, which would usually be with a solicitor
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