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A notary public is an Officer who can administer Oath s and Statutory Declaration s, Witness and Authenticate documents and perform certain other acts varying from jurisdiction to jurisdiction. For the purposes of authentication, most countries require commercial or personal documents which originate from or are signed in another country to be notarised before they can be used or officially recorded or before they can have any legal effect. Notaries Public (also called "notaries" or "public notaries") hold an office which can trace its origins back to Ancient Rome , when they were called "scribae", "tabellius" or "notarius". They are easily the oldest continuing branch of the Legal profession, existing throughout the whole of the world. In almost all countries notaries are required to be experienced and additionally trained Lawyer s or to have undergone a long period of training specifically be a notary. However, in 48 of the 50 US states (the exceptions being Louisiana and, to a degree, Florida ), notaries public are commonly not lawyers, which has led to acts performed by US notaries being regarded with some suspicion in other countries. The history of Notaries is set out in detail in Chapter 1 of ''Brooke's Notary'' (12th edition): :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 Court s 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. :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. :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 Medieval 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. :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 authorised 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. :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 Licences 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. :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. The duties and functions of notaries public are described in ''Brooke's Notary'' on page 19 in these terms: :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, for use anywhere in the world, 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." omitted. COMMON LAW JURISDICTIONS A notary in almost all common law jurisdictions is a qualified, experienced and additionally trained lawyer (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, Witness ing Affidavit s and Statutory Declarations , certification of copy documents, noting and protesting of Bills Of Exchange and the preparation of Ship s' protests. Significant weight attaches to documents certified by notaries. 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 Legalisation 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 "legalisation" 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. England 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 there are three classes of notaries. Scrivener notaries, who get their name from the Scriveners' Company , are the only notaries permitted to practise in the City Of London . Due to their geographical proximity to many Civil Law countries, scrivener notaries are only appointed after five years' articles to a practising notary. Scrivener notaries must be fluent in one or two foreign Language s and be familiar with the principles and practice of foreign law. The other notaries in England are either ecclesatical notaries whose functions are limited to the affairs of the Church of England or the second type are qualified solicitors who only practise outside the City and non-legally qualified persons who perfectly satisfy the Master Of The Faculties of the Archbishop Of Canterbury that they possess an adequate understanding of the law. Both the latter two categories are required to pass examinations set by the Master of Faculties. The regulation of notaries was modernised in the 1990s as a result of the Courts And Legal Services Act 1990 , section 57. Australia In all Australian States and Territories (except Queensland) notaries public are appointed by the Supreme Court Of The Relevant State Or Territory . A very few have been appointed as a notary for more than one State or Territory. Queensland, like New Zealand , persists with the archaic practice of appointment by the Archbishop of Canterbury acting through the Master Of The Faculties . Virtually all Australian notaries are lawyers of several years standing at least but very few lawyers are also notaries. 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 about 90 for the whole of that 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'' {Link without Title} SASC 320, delivered September 12 , 2003 , in refusing the application: :As a general rule, an applicant 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. Firstly, 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. Secondly, 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. The exact wording of the eschatocol is not fixed and will vary depending on the nature of the notarial act, but the text below is an example of what may be used in the verification of a signature by a South Australian notary.
The words "''IN FAITH''" denote the historic religious connections of the office of a notary public in the Middle Ages. Thus while those words will be used in an eschatocol relating to a sworn affidavit they will be omitted in one relating to an affirmed affidavit or a statutory declaration. 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 . Thirdly, a notary identifies himself or herself on documents by the use of his or her individual seal. Such seals have historical origins and are regarded by most other countries as of great importance for establishing the genuineness of a document. Their principal duties include: # attestation of documents and certification of their due execution for use Australia and internationally, # preparation and certification of powers of attorney, wills, deeds, contracts and other legal documents for use in Australia and internationally, # administering of oaths for use in Australia and internationally, # witnessing affidavits, statutory declarations and other documents for use in Australia and internationally, # certification of copy documents for use Australia and internationally, # exemplification of official documents for use internationally, # noting and protesting of bills of exchange, and, # preparation of ships' protests. Although it was once usual for Australian notaries to use a red embossed seal it is now increasing common, for practical reasons, for them to use a red inked stamp. Such seals or stamps must include 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 at least (as also in 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. It is important for US readers to note that, unlike US notaries, Australian notaries and those of virtually all other countries do not hold "commissions" which can expire. Once appointed they are authorised to act as a notary for life and can only be "struck off" the Roll of Notaries for proven misconduct. 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. Almost all Australian lawyers are also Commissioners For Affidavits . Justices of the Peace (JPs) are (usually) laypersons who have minimal, if any, training (depending on the jurisdiction) but are of proven good character. In a few jurisdictions, if they have had special training, JPs may also be very minor quasi-judicial officers, able to issue certain warrants and deal with very minor court processes such as after hours bail. They are not permitted to charge for their services and there are at least tens of thousands Australia-wide. They are entitled to use the letters "JP" after their name. Therefore a US notary resembles an Australian JP rather than an Australian notary. New Zealand Unless excluded under dominion or colonial law, the Master Of The Faculties formerly had authority to appoint notaries public in a Dominion or colony. The admission of notaries in the Commonwealth was governed specifically by the Public Notaries Act 1833 (UK). The provisions of the Public Notaries Act 1801-43 requiring a notary to be a Solicitor did not apply overseas, nor need a notary have a practising certificate as a solicitor, or from the Court Of Faculties . 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. The applicant, with the support of two other notaries public, who vouch that the applicant is well skilled in the affairs of notarial concern, petitions the Master of the Faculties. 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. 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). In these cases he is guided by local considerations of public convenience. United States
Each State in the United States has different requirements for becoming a notary public. Some states require that notaries be appointed directly by the state Legislature , while in others the individual simply takes an exam and pays a small annual fee. In most states, notaries are administered by the Secretary Of State ; in Alaska , this function is performed by the office of the Lieutenant Governor . A Maryland requirement that to obtain a commission, a notary declare his belief in God, as required by the Maryland Constitution, was found by the United States Supreme Court in '' Torcaso V. Watkins '', to be unconstitutional. Historically, some states required that a notary be a Citizen of the United States. However, the U.S. Supreme Court, in the case of '' Bernal V. Fainter '' (the ''Fainter'' case), declared that to be impermissible. In the U.S., there are reports of notaries (or people claiming to be notaries) having taken advantage of the differing roles of notaries in common law and civil law jurisdictions to engage in the unauthorized practice of law. The victims of such scams are typically illegal immigrants from civil law countries who need assistance with, for example, their immigration papers and want to avoid hiring an attorney. Confusion often results from the mistaken premise that a notary public in the United States serves the same function as a ''Notario Público'' in Spanish -speaking countries (which are Civil Law countries, ''see below''). Prosecutions in such cases are difficult, as the victims are often deported and thus unavailable to testify. California Each state authorizes a notary to perform a limited range of activities called notarizations. See California Government Code Sections 8201 ''et seq''. Effective July 1 2005 , California notaries must take a 6 hour class before taking the notary exam. This applies to both new notaries and existing notaries renewing their commissions. Due to the concerns mentioned above, California explicitly prohibits notaries from using the literal Spanish translation of their title {Link without Title} ( PDF file). Notarization does not prove the truthfulness of statements in a document, nor does it legalize or validate a document. Notarization also does not protect an author's rights in artistic creations or inventions. Notarization requires that the notary first screen the signer. This involves reviewing identity cards (e.g., a driver's license) or testimony from one or more credible identifying witnesses; the signer is responsible for bringing the necessary identification or witnesses. Once the screening is finished, the notary must complete the notarial act and record the action in a journal. California anti-fraud law requires a thumbprint in the journal entry for certain types of transactions. Documents with blank spaces cannot be notarized (a further anti-fraud measure). The two primary types of notarizations are ''acknowledgements'' and ''jurats''. '' Acknowledgment s'' are executed on Deed s, documents affecting property, and the like. An acknowledgment is a signed statement by the notary that the signer (1) personally appeared before the notary, (2) is personally known or was positively identified by the notary, and (3) acknowledged having signed the document. A ''jurat'' is the certificate of the notary stating that the signer (1) personally appeared before the notary, (2) is personally known or was positively identified by the notary (required as of fulness in a signer, through fear of the law or of God. New Jersey Notaries are commissioned by the State Treasurer for a period of five years. Notaries must also be sworn in by the clerk of the county in which he or she resides. One can become a notary in the state of New Jersey if he or she: (1) is over the age of 18; (2) is a resident of New Jersey OR is regularly employed in New Jersey and lives in an adjoining state; (3) has never been convicted of a Crime under the laws of any state or the United States, for an offense involving Dishonesty , or a crime of the first or second degree, unless the person has met the requirements of the Rehabilitated Convicted Offenders Act (NJSA 2A:168-1). Notary applications must be endorsed by a state legislator . Notaries in the state of New Jersey serve as impartial witnesses to the signing of documents, attests to the signature on the document, and may also administer oaths and affirmations. Seals are not required; many people prefer them and as a result, most notaries have seals in addition to stamps. Notaries may administer oaths and affirmations to public officials and officers of various organizations. They may also administer oaths and affirmations in order to execute Jurat s for affidavits/verifications, and to swear in witnesses. Notaries are prohibited from pre-dating actions; lending notary equipment to someone else (stamps, seals, journals, etc); preparing legal documents or giving legal advice; appearing as a representative of another person in a legal proceeding. Notaries should also refrain from notarizing documents in which they have a personal interest. Virginia Notaries are appointed by the Governor. An individual may become a notary public on (1) filling out an application; (2) having two persons who are registered voters to sign the application, attesting to the applicant's character; (3) having the application itself notarized, and the notary may not be either of the two people who attested to the applicant's character; (4) Having the application signed by the Clerk of a Circuit Court, a judge, Commonwealth's attorney, member of the state legislature, or certain other public officials; and (5) sending the application with a fee (as of November 2005 the fee was $35) to the Secretary of the Commonwealth in Richmond. The application is almost always approved. The Secretary of the Commonwealth will send the applicant's commission to the Clerk of the Circuit Court where the applicant asked it be issued. That clerk will swear the applicant, collect a fee of $10 (as of November 2005), and give the applicant their commission. At that point the applicant is now commissioned as a Notary Public in and for the Commonwealth of Virginia at large. While the applicant must swear that they have read the notary laws, there is no test or special knowledge required. Virginia does not require seals, but most people having documents authenticated expect them, so most notaries do carry and use them. No bond is required, and a notary is not required to keep a log of official acts. Virginia was one of the states that required notaries to be citizens prior to the ''Fainter'' decision. A Virginia notary is ''not'' permitted to perform marriages, that requires a separate permission, either by being an official (such as a Priest or a Minister ) of a Church or other religious organization, or by paying a fee. A notary applicant cannot have any (unpardoned) Felony criminal convictions, and a felony conviction will void a notary's commission. A notary must either be a resident of Virginia or work in the Commonwealth. A Virginia notary may only notarize a document while physically within the Commonwealth, unless the document is going to be recorded with an Independent City or County in Virginia. A Virginia notary is authorized to acknowledge signatures, take oaths, and certify copies of non-government documents. A notary may only authenticate a person based upon that person's documentation of their identity (such as a Driver's License or Identification Card ), or by the notary's own personal knowledge of the person appearing before them, use of witnesses to identify an individual is not permitted. A notary may not authenticate their own signature, nor may a notary authenticate any document to which they or their spouse are a party. The application to become a notary points out that since the persons who sign the application as voters are parties to the document, the notary cannot be either of those persons. A notary may charge a fee of $5 per document (as of November 2005, up from $3) if they wish, or may be required by their employer to notarize documents without fee, but if the notary does charge a fee their employer may not require them to surrender the fee to the employer. Acting as a notary without a valid commission constitutes a class 6 felony, punishable by up to 5 years in prison, in Virginia. CIVIL LAW JURISDICTIONS The role undertaken by notaries in Civil Law countries is much greater than in Common Law countries. Notaries in the former countries frequently undertake work done in common law countries by the Titles Office and other Government agencies. The qualifications imposed by some countries is much greater. In Greece , for example, a practitioner must choose to be either a solicitor or a notary. This should be contrasted with the Latin America n ''notario'' who may be similar to an Attorney At Law or Lawyer . A French '' Notaire '', a German '' Notar '' and an Italian '' Notaio '' register Will s and other documents, and authenticates transactions of Real Estate . In the few United States jurisdictions where trained notaries are allowed (such as Puerto Rico ), the practice of these jurists is limited to non-judicial legal advice, property conveyencing and legal drafting. See Civil Law Notary . EXTERNAL LINKS
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