NOTARIES PUBLIC IN ENGLAND AND WALES
:
IS THE MOST ANCIENT BRANCH OF THE LEGAL PROFESSION MAKING A
COMEBACK ?
An
article by
IAIN ROGERS
[Scrivener
Notary, London]
It would seem that the English have long demonstrated a
dislike for documentation and formalities: the Italian
notary Giovanni of Bologna who practised in England in the
13th century observed that “Italians, like cautious
men, want to have a public instrument for practically every
contract they enter into, but the English are just the
opposite and an instrument is very rarely asked for unless
it is essential.”
Notaries are ubiquitous figures in most countries, although
their status and functions vary greatly. It is somewhat
paradoxical that although notaries are by far the oldest
branch of the legal profession in this country, their
existence in modern times goes relatively unnoticed by the
public at large. Even experienced English (1) lawyers have
been known to deny the existence of notaries in this
country. The role played by notaries in this country has
over the last two centuries become marginalised and there
is a tendency now to think that notaries have never been an
integral part of the English legal system. The aim of this
article is to demonstrate that this is not the case.
Notaries developed in a close relationship with the Church
and to this day are appointed by the Archbishop of
Canterbury under the Ecclesiastical Licences Act 1533. It
is easy in these secular times to think of the world of
ecclesiastical appointments and the canon law as being far
removed from the everyday concerns of ordinary people, but
one does not have to go very far back in history to see
that this is not the case at all.
Up until the mid-nineteenth century, the ecclesiastical
courts played a significant role in English law. They had
exclusive jurisdiction in all matters relating to marriage
and testamentary dispositions and in cases of defamation
they had a concurrent jurisdiction with the common law
courts. In these courts and in the Court of Admiralty
(which also followed the Roman civil law) acts prepared by
a notary were recognised as public instruments (instrumenta
publica) and were thus accorded full faith (Fides
tabellionis aufert omnem suspicionem falsitatis)(2).
Attorneys (who represented clients and prepared cases for
litigation in the courts of common law), solicitors (who
performed the same function in the courts of equity) and
barristers (who did the actual pleading at trials in the
courts of both common law and equity) were excluded from
these courts. Lawyers who practised in the civil law courts
were known as advocates and proctors. The courts themselves
were held in an institution near St. Paul’s Cathedral
known to all as “Doctors’ Commons”
because it was where the Doctors of Law gathered. Both
civil law and canon law were university subjects, whereas
the common law was not, and the Doctors of Law were
therefore distinguished from their common-law counterparts
by the appellation “Doctor”. The full title of
Doctors’ Commons as set out in the Royal Charter
granted by George III in 1768 which incorporated the
society was “The College of Doctors of Law, exercent
in the Ecclesiastical and Admiralty Courts”. The
charter required that fellows of the College be in
possession of law doctorates from Cambridge or Oxford; this
had been the practice of the College for nearly a hundred
years prior to the granting of the Royal Charter.(3)
Doctors’ Commons was in many ways the equivalent for
civilian lawyers of the Inns of Court where the common law
attorneys and barristers gathered. Unlike Doctors’
Commons, the Inns were also of necessity centres of
education.(4) Four of these Inns still exist: Gray’s
Inn, Lincoln’s Inn, Inner Temple and Middle Temple,
and they provide support for barristers and student
barristers through a range of educational activities and
the provision of grants and scholarships.(5)
In “Sketches by Boz” Dickens gives the
following description of Doctors’ Commons:
“Now Doctors' Commons being familiar by name to
everybody, as the place where they grant marriage-licenses
to love-sick couples, and divorces to unfaithful ones;
register the wills of people who have any property to
leave, and punish hasty gentlemen who call ladies by
unpleasant names, we no sooner discovered that we were
really within its precincts, than we felt a laudable desire
to become better acquainted therewith; and as the first
object of our curiosity was the Court, whose decrees can
even unloose the bonds of matrimony, we procured a
direction to it; and bent our steps thither without
delay.”
David Copperfield is given the opportunity of being
apprenticed to a firm of proctors. In Chapter 23 he
enquires of his friend Steerforth what a proctor is:
“'I can tell you best what he is, by telling you what
Doctors' Commons is. It's a little out-of-the-way place,
where they administer what is called ecclesiastical law,
and play all kinds of tricks with obsolete old monsters of
acts of Parliament, which three-fourths of the world know
nothing about, and the other fourth supposes to have been
dug up, in a fossil state, in the days of the Edwards. It's
a place that has an ancient monopoly in suits about
people's wills and people's marriages, and disputes among
ships and boats.'
'Nonsense, Steerforth!' I exclaimed. 'You don't mean to say
that there is any affinity between nautical matters and
ecclesiastical matters?'
'I don't, indeed, my dear boy,' he returned; 'but I mean to
say that they are managed and decided by the same set of
people, down in that same Doctors' Commons. You shall go
there one day, and find them blundering through half the
nautical terms in Young's Dictionary, apropos of the
"Nancy" having run down the "Sarah Jane", or Mr. Peggotty
and the Yarmouth boatmen having put off in a gale of wind
with an anchor and cable to the "Nelson" Indiaman in
distress; and you shall go there another day, and find them
deep in the evidence, pro and con, respecting a clergyman
who has misbehaved himself; and you shall find the judge in
the nautical case, the advocate in the clergyman's case, or
contrariwise. They are like actors: now a man's a judge,
and now he is not a judge; now he's one thing, now he's
another; now he's something else, change and change about;
but it's always a very pleasant, profitable little affair
of private theatricals, presented to an uncommonly select
audience.'”
The reference to Doctors’ Commons being antiquated
accurately reflects the times when Dickens was writing
(David Copperfield was published in monthly parts between
May 1849 and November 1850). The Church’s
jurisdiction over defamation was taken away in 1855 and
over marriage and divorce in 1857. The building which
housed Doctors’ Commons was demolished in 1867 and
the College last met on 10th July 1865.
Outside of the civil law courts, notaries were – in
London, at least – also busy with commercial matters.
The 1747 edition of The London Tradesman, a career guide,
had the following to say about notaries:
“a very reputable Employ; and Youth who have served
their Time to a Notary of Reputation and Practice, can
never fail of handsome bread”
The work of notaries is described as requiring knowledge of
“such general Rules and Customs as are observed among
Merchants in their Dealing with one another in different
Countries”, in particular the settlement of accounts
between international traders, bills of exchange, the
drafting of indentures, articles of co-partnership of
trade, charter parties and policies of insurance, “a
general Idea of every thing relating to the Trading
World” and competence in Latin, French, Dutch,
Spanish, Italian and Portuguese.(6) Small wonder then, that
prospective notaries had to endure “seven
years’ slavery” – as apprenticeship was
then commonly known – before a faculty to practise as
a notary public would be granted!
The Judicature Act of 1875 created a High Court of Justice
with the jurisdiction of the old courts of the common law
and of equity and of the old civil law courts. The new
court applied the principle of orality (7) from the old
courts of common law and equity. In 1830 Lord Tenterden,
C.J, having noted the particular tasks of the English
notary and the value of the services provided by notaries
in international transactions, stated that “…
many documents pass before notaries under their notarial
seal, which gives effect to them and renders them evidence
in foreign countries, though certainly not in our courts of
common law”(8) and this is the approach which has
been followed in England and Wales exclusively from 1875
until very recently.
The Judicature Act reduced the dramatis personae of the
English legal system. Attorneys, solicitors and proctors
became fused into a single profession – the
solicitors – represented by the Incorporated Law
Society. Only barristers and notaries continued to exist
alongside the solicitors as distinct branches of the legal
profession.
The Incorporated Law Society promoted a Bill in Parliament
which would have led to the amalgamation of solicitors and
notaries. This was debated in the House of Lords in 1884.
The reported exchanges provide valuable information as to
the post-Judicature Act role of notaries in this country.
The notary’s duties were described thus:
“protesting bills of exchange and promissory notes;
secondly, drawing ship protests; thirdly, entering
statements and preparing certificates in shipping matters;
fourthly, the control of foreign bonds and similar
instruments; fifthly, translating documents; and sixthly,
giving advice on questions of foreign law”.
London’s merchants, bankers and traders petitioned
against the bill, and even London’s solicitors
protested that:
“It was quite impossible that the ordinary solicitor
could, with any safety, undertake the duties in question,
requiring, as they did, the most accurate and intimate
knowledge of foreign languages, foreign law, and of
commercial matters.”
Since the abolition of the civil-law courts, the work of
the English notary has been almost exclusively dedicated to
the preparation and authentication of deeds and other
documents for use abroad. The English notary intervenes not
when this is required by domestic law as is the case in
most countries, but when it is required by the laws and
procedural rules of the jurisdiction in which the document
is to take effect. In practice, the English notary assumes
the authentication role of the notary in the receiving
jurisdiction and adapts the procedures relevant to the
receiving jurisdiction so that they comply with English law
and notarial practice. An understanding of the laws and
language of the jurisdiction in question is clearly a great
asset and many notaries are competent linguists as well as
lawyers. It is indeed a requirement for those notaries who
wish to qualify as Scrivener Notaries (a small but
influential sub-division of the notarial profession
regulated by the
Worshipful Company of
Scriveners,
one of London’s livery companies, which until 1999
exercised a monopoly over all notarial work in and
around the City of London) that examinations be passed
in the drafting of foreign-language documents and the
translation of legal texts in two foreign languages.
The specialised knowledge gained by notaries from their
training and practical experience is invaluable when
dealing with documents relating to overseas transactions or
litigation. Competent English notaries act as an interface
between English law and the laws and procedures of the
foreign country, thus enabling ready recognition of the
deeds and documents of their clients abroad.
Notaries in England and Wales may be on the verge of a
revival on the domestic front. The inclusion earlier this
year in the Civil Procedure Rules of the Supreme Court of a
new rule giving probative status to notarial acts has been
greeted with some excitement by English notaries. The exact
wording of the rule is: “All notarial acts and
instruments may be received in evidence without further
proof as being duly authenticated in accordance with the
requirements of law unless the contrary is proved”.
It is hoped that the services provided by notaries which
can contribute greatly to the security and certainty of
transactions will henceforth be used more widely in
domestic matters. Giovanni of Bologna might have had his
doubts, but perhaps 800 years will prove to have been
sufficient for the English to change their ways!
FOOTNOTES
:
1.
England and Wales constitute a single legal jurisdiction;
under the Wales and Berwick Act Wales of 1746 references to
England were deemed automatically to include Wales but this
rule was abrogated by the Welsh Language Act of 1967, since
the enactment of which is has been correct to refer to
“England and Wales” where both are included in
the reference, hence careful lawyers will write “the
laws of England and Wales” rather than “English
law”.
2. For a full treatment of the role of notaries in the
ecclesiastical courts, readers are referred to
“Notaries Public in England since the
Reformation” by C.W. Brooks, R.H. Helmholz and P.G.
Stein, published for The Society of Public Notaries of
London by the Erskine Press, 1991. The Latin phrase is
quoted and referenced on page 44 of this book and might be
translated thus “The
good faith of a notary removes all suspicion of
falsehood”.
3. Ibid., p. 464.
4. cf. Paul Barber, M.A. (Cantab.), Barrister-at-Law,
“The Fall and Rise of Doctors’
Commons?”, Ecclesiastical
Law Journal Volume
4, No. 18, January 1996, p. 462.
5. Detailed information on the Inns of Court may be found
at
www.online-law.co.uk/bar/inns_of_court.html
and
www.barcouncil.org.uk/document.asp?languageid=1&documentid=19.
6. Quoted in Brooks, Helmholz and Stein, pp. 116-117.
7. The term “orality” refers to the rule of
facts being proved by the oral testimony of witnesses
examined on oath in open court.
R.
v. Scriveners’ Company (1830)
10 B. & C. 511
8. The one remaining task reserved to notaries by domestic
legislation is the noting and protesting of foreign bills
of exchange. See the Bills of Exchange Act 1882.