A notary public is an officer who can administer oaths and statutory declarations, witness and authenticate documents, and perform certain other acts depending on the jurisdiction.
With the exception of Louisiana, whose private law is based on civil law rather than common law, a notary public in the United States of America has powers that are far more limited than the role of a civil law notary in the rest of the world. There are far more notaries in the United States than in other countries (4.5 million[1] , compared with 900 in England and Wales). 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. This includes the translation of such documents done by a sworn translator approved by a governmental entity.
In some countries and states, notaries 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 (such as barristers or solicitors) must go through additional specialized notarial training and apprenticeship before being allowed to practice as a notary. In the United States, notaries public may not engage in any activities that fall under the heading of practice of law unless they are also admitted to the bar. Although some countries consider the profession of a civil law notary, itself, to be the practice of law. Many even have institutes of higher education issuing degrees in the field. In the United Kingdom, for example, a notary public can perform any task a solicitor or other lawyer can perform, as part of their notary public duties,with the sole exception of representing others before the courts (unless they are also a licensed barrister).
History
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, tabellius or notarius. 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):
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The office of a public notary is a public office. It has a long and distinguished history. The office has its origin in the civil institutions of ancient Rome. Public officials, called scribae, that is to say, scribes, rose in rank from being mere copiers and transcribers to a learned profession prominent in private and public affairs. Some were permanent officials attached to the Senate and courts of law whose duties were to record public proceedings, transcribe state papers, supply magistrates with legal forms, and register the decrees and judgments of magistrates.
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In the last century of the Republic, probably in the time of Cicero, a new form of shorthand was invented and certain arbitrary marks and signs, called notae, were substituted for words in common use. A writer who adopted the new method was called a notarius. Originally, a notary was one who took down statements in shorthand and wrote them out in the form of memoranda or minutes. Later, the title notarius was applied almost exclusively to registrars attached to high government officials, including provincial governors and secretaries to the Emperor.
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Notwithstanding the collapse of the Western Empire in the 5th century AD, the notary remained a figure of some importance in many parts of continental Europe throughout the Dark Ages. When the civil law experienced its renaissance in mediæval Italy from the 12th century onwards, the notary was established as a central institution of that law, a position which still obtains in countries whose legal systems are derived from the civil law.
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The separate development of the common law in England, free from most of the influences of Roman law, meant that notaries were not introduced into England until later in the 13th and 14th centuries. At first, notaries in England were appointed by the Papal Legate. In 1279 the Archbishop of Canterbury was authorized by the Pope to appoint notaries. Not surprisingly, in those early days, many of the notaries were members of the clergy. In the course of time, members of the clergy ceased to take part in secular business and laymen, especially in towns and trading centres, began to assume the official character and functions of a modern notary.
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The Reformation produced no material change in the position and functions of notaries in England. However, in 1533 the enactment of "the Act Concerning Peter's Pence and Dispensations" (The Ecclesiastical Licenses Act, 1533) terminated the power of the Pope to appoint notaries and vested that power in the King who then devolved it to the Archbishop of Canterbury who in turn devolved it to the Master of the Faculties.
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Traditionally, notaries 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.
Common law jurisdictions
The duties and functions of notaries public are described in Brooke's Notary on page 19 in these terms:
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Generally speaking, a notary public may be described as an officer of the law whose public office and duty it is to draw, attest or certify under his official seal deeds and other documents, including wills or other testamentary documents, conveyances of real and personal property and powers of attorney; to authenticate such documents under his signature and official seal in such a manner as to render them acceptable, as proof of the matters attested by him, to the judicial or other public authorities in the country where they are to be used, whether by means of issuing a notarial certificate as to the due execution of such documents or by drawing them in the form of public instruments; to keep a protocol containing originals of all instruments which he makes in the public form and to issue authentic copies of such instruments; to administer oaths and declarations for use in proceedings to note or certify transactions relating to negotiable instruments, and to draw up protests or other formal papers relating to occurrences on the voyages of ships and their navigation as well as the carriage of cargo in ships." [Footnotes omitted.]
A notary, in almost all common law jurisdictions, is a qualified, experienced practitioner trained in the drafting and execution of legal documents. (A notable exception being 48 of the 50 U.S. States and some parts of Canada.) Traditionally, notaries 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. Specifically, the functions of notaries 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
Australia
United States
In the United States a notary public is a person appointed by a state government (often the governor or the secretary of state of the state, or in some cases the state legislature. In Georgia, the Clerk of Superior Court in individual counties appoints the Notary Public commissions[3]) to serve the public as an impartial witness. Since the notary is a state officer, whether the jurisdiction is common law or civil law is determined on a state-by-state basis; Louisiana is the only civil law state.[4] In most states, only qualified persons can apply for such an appointment, called a commission. Qualifications vary from state to state, but states often bar people with certain types of criminal convictions and/or below a certain age from being appointed, and applicants usually must pass an examination covering notary practices and law. The material for such exams is typically contained in a booklet published by the state. Some states also require a bond or insurance.
Notaries in the United States are much less closely regulated than notaries in civil law jurisdictions or in most other common law countries, typically because U.S. notaries have less authority. In the United States, a non-attorney notary may not offer legal advice or prepare documents (with the exception of Louisiana[citation needed]) and cannot recommend how a person should sign a document or even what type of notarization is necessary. In many cases, a notary cannot authenticate a copy of a document. The most common notarial acts in the United States are the taking of acknowledgements and oaths. Unlike court reporters outside the United States, US court reporters are often notaries as this enables them to swear in witnesses (deponents) when they are taking depositions.
Acknowledgment
"An acknowledgment is a formal [oral] declaration before an authorized public officer. It is made by a person executing [signing] an instrument who states that it was his [or her] free act and deed." That is, the person signed it without undue influence and for the purposes detailed in it.[5] A certificate of acknowledgment is a written statement signed (and in some jurisdictions, sealed) by the notary or other authorized official that serves to prove that the acknowledgment occurred. The form of the certificate varies from jurisdiction to jurisdiction, but will be similar to the following:
On the ....day of .... in the year...before me, the undersigned, personally appeared ...personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.
In all Australian States and Territories (except Queensland) notaries public are appointed by the Supreme Court of the relevant State or Territory. Very few have been appointed as a notary for more than one State or Territory.
Queensland, like New Zealand, continues the practice of appointment by the Archbishop of Canterbury acting through the Master of the Faculties.
Many Australian notaries are lawyers but the overall number of lawyers who choose to become a notary is relatively low. For example, in South Australia (a State with a population of 1.5 million), of the over 2,500 lawyers in that state only about 100 are also notaries and most of those do not actively practice as such. In Melbourne, Victoria, in 2002 there were only 66 notaries for a city with a population of 3.5 million and only 90 for the entire state. Compare this with the United States where it has been estimated that there are over 3 million notaries for a nation with a population of 296 million.
As Justice Debelle of the Supreme Court of South Australia said in the case of In The Matter of an Application by Marilyn Reys Bos to be a Public Notary [2003] SASC 320, delivered September 12, 2003, in refusing the application:
As a general rule, an applicant [for appointment as a notary] should be a legal practitioner of several years standing at least. Even a cursory perusal of texts on the duties and functions of a public notary demonstrates that a number of those functions and duties require at the very least a sound working knowledge of Australian law and commercial practice. In other words, the preparation of a notarial act plainly requires a sound knowledge of law and practice in Australia especially of the due preparation and execution of commercial and contractual instruments. It is essential that notaries in this State have a sufficient level of training, qualification and status to enable them efficiently and effectively to discharge the functions of the office.
Historically there have been some very rare examples of patent attorneys or accountants being appointed, but that now seems to have ceased.
However, there are three significant differences between notaries and other lawyers.
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the duty of a notary is to the transaction as a whole, and not just to one of the parties. In certain circumstances a notary may act for both parties to a transaction as long as there is no conflict between them, and in such cases it his or her duty is to ensure that the transaction that they conclude is fair to both sides.
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a notary will often need to place and complete a special clause or attach a special page (known as an eschatocol) on or to a document in order to make it valid for use overseas.
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In the case of some documents which are to be used in some foreign countries it may also be necessary to obtain another certificate known either as an "authentication" or an "apostille" (depending on the relevant foreign country) from the Department of Foreign Affairs and Trade.
Their principal duties include:
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attestation of documents and certification of their due execution for use in Australia and internationally,
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preparation and certification of powers of attorney, wills, deeds, contracts and other legal documents for use in Australia and internationally,
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administering of oaths for use in Australia and internationally,
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witnessing affidavits, statutory declarations and other documents for use in Australia and internationally,
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certification of copy documents for use Australia and internationally,
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exemplification of official documents for use internationally,
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noting and protesting of bills of exchange, and,
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preparation of ships' protests.
Although it was once usual for Australian notaries to use a red embossed seal it is now common for them to use a red inked stamp that contains the notary's full name and the words "notary public". It is also common for the seal or stamp to include the notary's chosen logo or symbol.
In South Australia and Scotland, it is acceptable for a notary to use the letters "NP" after their name. Thus a South Australian notary may have "John Smith LLB NP" or similar on his business card or letterhead.
Australian notaries do not hold "commissions" which can expire. Generally, once appointed they are authorized to act as a notary for life and can only be "struck off" the Roll of Notaries for proven misconduct. In certain States, for example, New South Wales, they cease to be qualified to continue as a Notary once they cease to hold a practising certificate as a legal practitioner.
All Australian jurisdictions also have Justices of the Peace (JP) or Commissioners for Affidavits who can witness affidavits or statutory declarations and certify documents. However they can only do so if the relevant affidavit, statutory declaration or copy document is to be used only in Australia rather than in a foreign country, with the possible exception of a few Commonwealth countries not including the United Kingdom or New Zealand except for very limited purposes. Justices of the Peace (JPs) are (usually) laypersons who have minimal, if any, training (depending on the jurisdiction) but are of proven good character. Therefore a US notary resembles an Australian JP rather than an Australian notary.
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