The survival of Notaries Public in New Zealand
:
Orphaned offspring of a venerable parent
An
article by
Prof. Noel Cox
Professor in Law at the Auckland University of Technology,
New Zealand
ABSTRACT OF ARTICLE
Almost
twenty years ago the Imperial Laws Application Act 1988
(NZ) ended the application in New Zealand of most hitherto
surviving imperial legislation. This was regarded at the
time as being one of the principal steps on the road to
legal independence. Despite the passage of this
legislation, notaries public in New Zealand are still
appointed in the name of the Archbishop of Canterbury.
Consideration was given at the time of enacting the
Imperial Laws Application Act 1988 (NZ) to introducing a
Notaries Public Bill, in order to make provision for
notaries public. In the event nothing was done, and the
office remains unreformed. The result of the passage of the
Imperial Laws Application Act 1988 (NZ), and of more recent
legislative and regulatory changes in England and Wales, is
that the legal basis for the appointment in New Zealand is
now unclear, but possibly dependent upon principles of
usage and custom, rather than statutory authority as
hitherto. Yet the appointment remains sought after, with
over 200 in practice today.
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Introduction
The
nature of the office of notary is probably better
understood in civil law countries than it is in those of
the common law. Indeed it is perhaps not an exaggeration to
observe that the notary public is a survival of a civil law
officer transplanted – primarily via the Church
– into the common law world. The notary
public’s duties are primarily involved with
authenticating documents, but they have long enjoyed
special responsibilities across a much wider range of
activities than are exercised today, for instance, by
Commissioners of Oaths. In that they reflect the civil
law’s concern for documentary form and regularity.
But it is not only in their inherently alien (that is to
say, non-common law) origins that notaries are unique in
the common law; in their mode of appointment they also
reflect a quite remarkable survival of a pre-Reformation
English legal institution. In England, and in a diminishing
number of Commonwealth countries, including New Zealand,
notaries (or notaries public) are appointed, not by direct
action of the Crown, but rather under the authority of the
Archbishop of Canterbury, the Primate of All England [2].
Since the Reformation the notion of the division between
Church and State – never as fully developed in
England as in some Continental European countries, and as
the notion is understood in the United States of America
– has evolved to the extent that there remain few
examples where appointments straddle both Church and State.
Though notaries public are not ecclesiastical officers
(apart from those expressly appointed as such) they have
since 1533 – and indeed long before that – been
appointed by or on behalf of the Archbishop, originally as
a Papal legate.
That this arrangement should have extended to the colonies
from the nineteenth century was not especially surprising
[3]; but its continued survival since then in some of the
realms is remarkable. It is perhaps testament to a
combination of satisfaction with the manner in which the
Faculty Office maintains a quality profession, reluctance
to change arrangements which have operated successfully for
more than five hundred years, and possibly an unwillingness
to alter a system which is well-recognised internationally.
The appointment of notaries by a completely non-political
official (the Master of the Faculties to the Archbishop)
also helps to reinforce the independence of the office of
notary.
However, recent regulatory changes both in New Zealand and
the United Kingdom have left the position of notaries in
this country rather more uncertain than would be desirable
– though so far with no discernible effect upon the
popularity of the office, or its role.
Almost twenty years ago the Imperial Laws Application Act
1988 (NZ) ended the application in New Zealand of most
surviving imperial legislation which until that time had
been in effect in this country from the adoption of English
laws in the nineteenth century. The English Laws Act 1858
[4] had been passed, in the words of the long title,
“to declare the Laws of England, so far as applicable
to the circumstances of the Colony, to have been in force
on and after the Fourteenth day of January, one thousand
eight hundred and forty” [5]. The purpose of the
statute was to clarify some uncertainty as to whether or
not all Imperial acts passed prior to 1840 were in force in
New Zealand, if otherwise applicable. By 1988 almost all
English and British (“imperial” for
convenience) legislation had been superseded by newer New
Zealand legislation, or abrogated altogether. The remaining
legislation was abolished in 1988 by the new Act.
This move was regarded as being one of the principal steps,
if not the final step (appeals to the Judicial Committee of
the Privy Council remained for some fifteen years [6]), on
the road to legal independence, but was largely an
administrative tidying-up exercise. With a mere handful of
exceptions the surviving English and British legislation
technically in force in this country had little or no
effect in New Zealand. However, notaries were an important
exception. Despite the enacting of this legislation,
notaries public in New Zealand continued to be appointed in
the name of the Archbishop of Canterbury, the Primate of
All England, though the legal basis for this appears to
have been swept away along with other imperial legislation
– at least with respect to the laws of New Zealand.
Consideration was given at the time of enacting the
Imperial Laws Application Act 1988 (NZ) to introducing a
Notaries Public Bill, in order to make independent
statutory provision for notaries public in this country. In
the event nothing was done, and the office remains
unreformed, indeed without apparent statutory authority.
Yet the appointment remains much sought after, with over
200 in practise today in New Zealand.
Though it may seem anomalous to have a class of New Zealand
legal practitioner [7] appointed by an ecclesiastical
authority, let alone an English one, this is not now the
primary factor which should influence any review of the
office – were one to occur. Modern commercial
practice, and especially electronic commerce, makes it
imperative that any change takes into account international
usage of the office, as it has done in the recent reforms
in England. However, the immediate difficulty, if such it
is, remains that the authority for the continued
appointment of the office is now not clear, with the
abrogation of the Ecclesiastical Licences Act 1533-34 (Eng)
[8].
The effect of this is that notaries in New Zealand have
apparently become legally orphaned from their parent in
England, though de facto parentage survives. The Office of
the Master of the Faculties has sensibly continued to
appoint notaries in this country as hitherto, but the
absence of any clear authority for this is a problem. The
pragmatism of the Master of the Faculties is well founded.
Although the civil law never became the basis of the laws
of England, and consequently of New Zealand, its influence
has always been felt. Notaries are an international legal
institution. The influence of the civil law was
particularly important in commercial law, in which notaries
have traditionally conduced much of their duties.
The international character of this field of law meant that
English law had to take account of the civil law practiced
more widely on the continent of Europe. One consequence of
this was the survival, in England, of the notary public.
Appointed by ecclesiastical authorities [9], they
nonetheless had primarily secular duties, which were akin
to those of notaries in civil law countries. At a purely
pragmatic level the global nature of commercial
transactions encourages the preservation of the
international character of the notary – and how
better than by their appointment by the Master of the
Faculties. This international character also encourages the
continued appointment of notaries in New Zealand by the
Master of the Faculties.
With the introduction of mutual recognition legislation for
legal practitioners in Australia and New Zealand it may now
be time to reconsider the position of the notary. Growth in
electronic commerce and the resultant need for
international harmonisation also suggest that it is time
the office was re-examined. But none of these developments
necessarily means that in the future notaries in New
Zealand cannot continue to be appointed by the Master of
the Faculties. But the absence of specific legislative or
regulatory provisions for the appointment of notaries is to
be regretted.
This paper will look first at the nature of notaries. The
mechanism of appointment will be reviewed, both in the
Commonwealth generally, and in New Zealand specifically. To
conclude it will outline some of the factors which must be
considered in any review of the office of notary public in
New Zealand (including steps that might be taken to
reinforce the position of the Master of the Faculties).
Nature of a notary
A proper understanding of the office of notary is only
possible within its historical framework, both within the
Commonwealth, in England before the development of the
empire, and in mediæval Christian Europe. Notaries Public
[10] are creatures of the civil law, though they have a
long been a feature of the common law world, indeed having
been mentioned in the Statute of Provisors 1352 [11]. But
unlike barristers and solicitors (though like the advocates
and proctors of the admiralty and ecclesiastical courts,
now sadly obsolete [12]), they were always ecclesiastical
officers [13], appointed from 1533 [14] by the Master of
the Faculties to the Archbishop of Canterbury [15], in
order to substantiate evidence of human activities [16].
All registrars of ecclesiastical courts in
the Provinces of Canterbury and York of the Church of
England must still be notaries [17], however, a general
notary’s duties are primarily secular.
The notaries became a feature of the English legal
landscape through the influence of the ecclesiastical and
civil laws. The notary is a civil lawyer practising in
non-contentious matters, but does not have the same
relationship with his or her clients, as does a solicitor
[18]. The notary’s responsibility is to the
transaction itself, rather than to the client [19], in
traditional civil and canon law fashion. Although notaries
were appointed by the Church, rather than royal officials,
their existence was recognised in statute law as early as
the Statute of the Staple 1352-53 [20].
The appointment of notaries passed to the Archbishop of
Canterbury with the passage of the Ecclesiastical Licences
Act 1533-34 [21], also known as the Peter Pence Act. This
conferred the power, formerly vested in the pope, to grant
licences, dispensations and faculties [22] upon the
Archbishop of Canterbury.
In foreign countries generally, that is those not part of
the Commonwealth, notaries are governed by special
legislation [23]. In the United States of America they are
usually appointed by the Governors of the states (and, for
the District of Columbia, by the President of the United
States), and have often been condemned for being of a low
standard [24], being untrained laymen – often
secretarial. They are not empowered to act outside their
own state, and often not beyond their own county [25].
There has been no attempt in the common law world to codify
the precise nature of the office of notary public as has
been done in continental Europe, Latin America, and other
parts of the world whose legal systems are based on
principles derived from Roman law. The functions of
notaries may however be gleaned from a number of sources
[26]. The chief of these is custom, principally the law
merchant [27]. To a limited extent case law provides
guidance, and some statutes deal with specific aspects of
their work [28].
Although disparate duties fall to the notary public, they
have as a common element the ancient function to
substantiate evidence of human activities. This is clear in
the wording of a modern Declaration of Office of a notary
public appointed by the Master of the Faculties [29].
In common law countries such as New Zealand, various
officers are empowered to witness the taking of a
declaration, statutory declaration, and similar evidentiary
instruments [30]. Some of these, such as Justices of the
Peace, and solicitors, are numerous. While there are in New
Zealand some 7,000 solicitors [31], and 6,000 Justices of
the Peace, there are only 200 notaries public. Their role
however is more restricted, being concerned with commercial
transactions. More importantly, the notary is recognised by
private international law in a way that the other officers
are not. By the law of nations, the acts of a notary have
credit everywhere [32] – though in typically insular
fashion the common law has in practice not accorded full
and unequivocal recognition to the actions of notaries.
In many Commonwealth countries other officials can conduct
the functions of a notary. Commonwealth countries generally
have Commissioners for Oaths, and similar officials [33].
In New Zealand, the Oaths and Declarations Act 1957 (NZ)
provides that declarations made outside New Zealand, but
within the Commonwealth, may be taken before a Commissioner
of Oaths or a Solicitor of the High Court of New Zealand
[34]. It is however in their role of authenticator of
documents for non-Commonwealth legal processes that the
notary is most important.
In England, special Commissioners for Oaths are not now
appointed [35]. Now, every authorised person has the powers
of a commissioner for oaths, as does every general notary
[36]. These authorised persons include any authorised
advocate or authorised litigator, other than one who is a
solicitor, in relation to whom similar provision was made
by s 81 of the Solicitors Act 1974 (UK) [37]. They also
include any person who is a member of a professional or
other body prescribed by the Lord Chancellor [38].
Every solicitor who holds a practising certificate,
authorised person, general notary, and member of the
Incorporated Company of Scriveners admitted to practise as
a public notary within the jurisdiction of the Company
shall have the right to use the title “Commissioner
for Oaths” [39]. Similar legislation applies in the
Canadian provinces and elsewhere.
The Commissioners of Oaths exist primarily for Commonwealth
countries. Outside the Commonwealth a notary replaces the
Commissioner of Oaths. The great majority of civil law
countries require documents to be authenticated by a notary
public, and cannot be unilaterally abandoned by any single
country [40].
Appointment of notaries public
Under his inherent jurisdiction and later statutory
authority, the Master of the Faculties makes rules
governing the admission of notaries in England [41], and
elsewhere where his jurisdiction survives. Applicants,
excepting those appointed for ecclesiastical purposes only,
are now required to pass examinations in notarial practice
[42].
General Notaries have been appointed in England and Wales
under statute since 1801 [43]. Depending upon the terms of
their Faculty [44], they might practise either in all
places in England and Wales, including the area formerly
under the jurisdiction of the Scriveners’ Company
[45], or in all places in England and Wales outside that
area. They will normally be solicitors of the Supreme Court
of England and Wales [46].
District Notaries were appointed and regulated by statute
from 1833 [47]. They were appointed by Faculty of the
Master of the Faculties, for a specific geographical area
[48]. Since 1991 the distinction between general and
district notaries has ended, and they may now practise, as
general notaries, in all parts of England and Wales outside
the jurisdiction of the Scriveners’ Company [49].
All applicants for appointment as notaries public in
England and Wales must be aged twenty-one or over, and have
satisfied the requirements of one of four rules, as being
qualified for appointment as an Ecclesiastical Notary,
Scrivener Notary, Solicitor Notary, or other Notary. Before
commencing practice a notary must also be duly sworn,
admitted and enrolled in the Court of Faculties [50].
The Master of the Faculties appoints ecclesiastical
Notaries for the ecclesiastical purposes of the Church of
England within England. There are few besides the diocesan
registrars and legal secretaries of Bishops [51]. They are
not now appointed in Wales, nor are they required to serve
apprenticeships. Appointments are made as a matter of
course if the applicant is personally suitable [52].
The
Courts and Legal Services Act 1990 (UK) saw the emergence
of the notarial profession in England and Wales from a long
period of legislative neglect. This was caused in part at
least by the entry of the United Kingdom into the European
Community. The growing international contacts of the legal
profession, which had led to an appreciation of the
importance of the role played by notaries in the civil law
jurisdictions of continental Europe.
Solicitors are seeking appointment in England and Wales as
notary public in increasing numbers, and the profession
there appears in good shape [53], with increasing numbers
of full-time notaries [54]. However, in New Zealand the
situation remains unreformed, with post-1991 English rules
largely inapplicable, and pre-1991 statutory authority now
apparently abolished in the New Zealand Parliament.
Notaries
in the Commonwealth
Unless excluded under dominion or colonial law, the Master
of the Faculties formerly had authority to appoint notaries
public in a dominion or colony [55]. The admission of
notaries in the Commonwealth was governed specifically by
the Public Notaries Act 1833 (UK) [56]. The provisions of
the Public Notaries Act 1801-43 requiring a notary to be a
solicitor did not apply overseas [57], nor need a notary
have a practising certificate as a solicitor, or from the
Court of Faculties [58].
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 1533-34 (Eng)
[59]. In these cases he is guided by local considerations
of public convenience [60]. The Master continues to appoint
notaries in the Channel Islands, Gibraltar, New Zealand,
and Papua New Guinea [61]. In Australia, the Master
continues to appoint notaries in the states of Tasmania,
Victoria and Queensland, the other states having passed
legislation to enable appointment to be made in those
states [62].
The Master of the Faculties also appointed notaries public
in Hong Kong until 30 June 1997, though they were also
registered with the Supreme Court.
Notaries Public in New Zealand
As indicated, notaries in New Zealand continue to be
appointed by the Master of the Faculties [63]. There is,
however, some uncertainty as to the source of the authority
for this [64]. The authority which is apparently relied
upon is the Ecclesiastical Licences Act 1533-34 (Eng) [65],
rather than the Public Notaries Act 1833 (UK) [66].
Consideration was however given more than a decade ago to
enacting a Notaries Public Bill in New Zealand, in order to
make provision for a code for this country in relation to
notaries public.
The Report of the Law Reform Committee on the proposed
Imperial Laws Application Bill, issued in 1988, noted that
consideration was being given to enacting a Notaries Public
Bill in New Zealand in order to make provision for a code
for New Zealand in relation to notaries public. It was
anticipated that this code would not be in place in New
Zealand soon enough to fit in with the timetable for the
Imperial Laws Application Bill [67]. The Report therefore
provided in the Imperial Laws Application Bill for the
pre-existing Bill for the position to be covered in the
meantime by the savings provision in clause 10 (10) (f) of
the Bill [68].
However, when enacted, the Imperial Laws Application Act
1988 (NZ) did not contain any savings clause. As a
consequence, the Ecclesiastical Licences Act 1533-34 (Eng)
[69], the Public Notaries Act 1801 (UK) [70], the Public
Notaries Act 1833 (UK) [71], and the Public Notaries Act
1843 (UK) [72] have all ceased to have effect as part of
the laws of New Zealand [73]. None of these Acts, nor the
newer Courts and Legal Services Act 1990 (UK) [74] are in
force in New Zealand, which leaves the authority of the
Master to appoint notaries for New Zealand rather
uncertain. Nor was the proposed Bill ever introduced. It
would seem that the repealed (with respect to New Zealand)
Ecclesiastical Licences Act 1533-34 [75] continued to
spread its ghostly hand over the Office of the Master of
the Faculties, and an obsolete English Act of Parliament is
legal authority for the appointment of notaries in New
Zealand.
There need not be legal authority for the appointment of
notaries for the notaries to have legal standing. Public
authorities and officials must act intra vires. They can
only do what the law permits them to do, they cannot do
what the law forbids them to do. However, they do not
necessarily require legislative authority to make
appointments, unless the appointment in rem affects the
law. This is not the case with notaries. It is sufficient
that there are notaries, the means of appointing them is of
secondary importance.
However, under whatever authority they may be appointed,
notaries are not unknown to the statute law of this country
[76], or of other common law countries. The common law has
always been ambivalent. The notary is essentially a
creature of the civil and canon laws [77]. The notary
public is relatively rare, and often ill-defined, in common
law jurisdictions [78].
Conclusion
At present the notary public in New Zealand is an officer
assigned by history the function of authenticating and
protesting certain instruments. His or her responsibility
is to the transaction itself, rather than to the client.
Although New Zealand shares with a considerable number of
countries a common law system, originally developed in the
courts at Westminster, this is but one of the two great
legal systems of the world.
The other is that of the civil law, developed from the
Roman civil law, and influenced especially by the Codes
Napoleon. This system has also greatly influenced the
common law, though the extent to which Roman law was
received in England has been disputed. As one empire, that
of the pope, was abruptly ended in England in 1533-34, so
another, that of Great Britain, has now all but ended. But
whereas in the first case the appointment of notaries was
regularised immediately – by being transferred to the
Archbishop of Canterbury, there has been no comparable
change in the appointment of notaries public after the
decline of the British Empire.
Largely this is because of the different nature of the
political evolution that led to the independence of the
dominions. But it also reflects an added difficulty, one
that was not considered in 1533-34. The process of changing
the process of authentication in New Zealand would require
an approach to every independent country, to ensure that
notarial acts receive due recognition [79]. For this
reason, it seems likely that no such move to nationalise
the office is imminent [80].
In many civil law countries the notary is, as he was in
England in the past, a distinct official, unable to
practise as a solicitor, or in any profession but notary.
But these officials generally have a wider function than
the notary does in the common law world today [81].
The rapid growth of electronic commerce raises questions
about the future of the notarial profession world-wide
[82]. One response, seen so far only in civil law
countries, is the “cybernotary”. These
authenticate documents by electronic means through the
internet, which can reproduce such documents almost
instantaneously anywhere in the world [83]. The future
direction of this type of electronic media is uncertain,
but the notarial profession must be prepared to meet the
demands that it brings [84]. And it is important to
remember that the notary’s responsibility is to the
transaction itself, rather than to the client.
With the introduction of the Trans-Tasman Mutual
Recognition Act 1997 (NZ), which came into force in New
Zealand on 1 May 1998, it should be possible to accord
mutual recognition to notaries appointed in each
jurisdiction. Since the methods of appointment in New
Zealand and the Australian jurisdictions are approximately
evenly divided between the Master of the Faculties and
local appointments, there should be little difficulty in
according them mutual recognition.
With increasing globalisation, there is a need to maintain,
if not increase, the standardisation of the notarial
profession. The number of countries which have notaries
appointed by the Master of the Faculties is not great, but
they have commercial significance out of proportion to
their populations. This common appointment should not be
abandoned lightly. Most importantly, no change should be
made without considering the international implications,
and the effects of electronic commerce.
As officers appointed by the Master of the Court of
Faculties of the Archbishop of Canterbury, notaries public
are a significant survival of imperial unity. But they are
also an important relic of the former universal papal
authority. While the present situation should be allowed to
continue unless a better could be devised, it would be
necessary, were Australia or New Zealand to become
republics, for statutory provision to be made for their
appointment, and for the regulation of their professional
activity [85]. For the present, however, it would be
desirable for the Faculty Office to enact regulations
specifically for the regulation of the notarial office in
New Zealand (and those other jurisdictions in which
appointments continue to be made).
FOOTNOTES
1
: LLM(Hons) MA PhD GradDipTertTchg FRHistS, Barrister of
the High Court of New Zealand, and of the Supreme Courts of
the Australian Capital Territory, New South Wales, the
Northern Territory, Queensland, South Australia, Tasmania,
and Victoria, Professor in Law at the Auckland University
of Technology, New Zealand.
2 : Though the senior of the two archbishops in England
– and historically Wales – Canterbury long vied
with York for supremacy. This was conceded in 1353, though
the Archbishop of York remains Primate of England. However,
the power to appoint notaries public owes more to the
statutory authority of the Ecclesiastical Licences Act 1533
(25 Hen VIII c 21) (Eng), the Public Notaries Act 1801 (41
Geo III c 79) (UK), the Public Notaries Act 1833 (3 & 4
Will IV c 70) (UK),
the Public Notaries Act 1843 (6 & 7 Vict c 90) (UK),
and the Courts and Legal Services Act 1990 (UK).
3 : Given the general application of English laws to the
colonies; Report of the Privy Council on the project of a
Bill for the better government of the Australian Colonies,
dated 1 May 1849; R v Symonds (1847) NZPCC 387 (SC); Sir
William Blackstone, Commentaries on the Laws of England ed
E Christian (New York: Garland Publishing, 1978) book I,
para 107; as applied in, inter alia, King v Johnston (1859)
3 NZ Jur (NS) SC 94.
4 : 21 & 22 Vict no 2, considered in King v Johnston
(1859) 3 NZ Jur (NS) SC 94.
5 : 21 & 22 Vict no 2, s 1.
6 : Until the Supreme Court Act 2003 (NZ).
7 : The Lawyers and Conveyancers Act 2006 did not include
notaries, though it regulated barristers and solicitors,
and licensed conveyancers.
8 : 25 Hen VIII c 21 (Eng).
9 : Some were also appointed by the emperor, though the
legal standing of such notaries was never entirely settled
in England, as the country never acknowledged allegiance to
the Holy Roman Empire; generally, see C R Cheney, Notaries
Public in England in the Thirteenth and Fourteenth
Centuries, Oxford, Clarendon Press, 1972.
10 : Also called notaries, or public notaries; In Latin,
variously registrarius, actuarius, or notarius. The modern
notary corresponds rather to the tabellis or tabularius,
rather than to the notarius, who was a scribe (and often a
slave).
11 : 25 Edw III stat 4 (Eng).
12 : Generally, see Noel Cox, “The Influence of the
Common Law and the Decline of the Ecclesiastical Courts of
the Church of England” (2001-2002) 3(1) Rutgers
Journal of Law and Religion 1-45 - click
HERE
to download [PDF]
13 : In canon law, a notary is a person legitimately
constituted by ecclesiastical authority to authenticate by
his or her signature ecclesiastical documents. By the
fourth Lateran Council (1215), every ecclesiastical court
was required to have a notary. In the Roman Catholic
Church, the notary is commonly in holy orders. Lay notaries
did not appear until as late as the fourteenth century.
14
:
By the Ecclesiastical Licences Act 1533 (25 Hen VIII c 21)
(Eng). This Act has been repealed so far as New Zealand is
concerned, by the Imperial Laws Application Act 1988 (NZ).
The relevant section, s 2, was repealed in England and
Wales by the Statute Law Repeals Act 1969 (UK). Formerly,
all notaries throughout Western Christendom were appointed
by, or with the authority of the Pope. In England, some
bishops received faculties to appoint notaries, while
others were appointed directly by the Pope. There was,
however, no general delegation to the Archbishop of
Canterbury, or any other bishop. The Clerk of the Crown in
Chancery no longer registers notaries public, as formerly
– Courts and Legal Services Act 1990 (UK) s 57 (10).
15 : The Commissary or Master of the Faculties is the head
of the Court of Faculties, and also, as Dean of the Arches
and Auditor, Judge of the Provincial Courts of Canterbury
and York. The authority to appoint notaries is found in the
Ecclesiastical Licences Act 1533-34 (25 Hen VIII c 21)
(Eng), the Public Notaries Act 1801 (41 Geo III c 79) (UK),
the Public Notaries Act 1833 (3 & 4 Will IV c 70)
(UK),
the Public Notaries Act 1843 (6 & 7 Vict c 90) (UK),
and the Courts and Legal Services Act 1990 (UK).
16 : The faculty issued by the Office of the Master of the
Faculties clearly sets out the responsibilities of a
notary. The wording of a modern faculty appointing a notary
in England and Wales are as follows –
“[ ... ], by Divine Providence, Archbishop of
Canterbury, Primate of all England and Metropolitan, by
Authority of Parliament lawfully empowered for the Purposes
herein written: To Our Beloved in Christ, [ ... ], a
literate Person now residing at [ ... ], Health and Grace:
We being willing, by reason of your merits to confer on you
a suitable Title of Promotion, do create you a Public
Notary; previous Examination and all other Requisites to be
herein observed having been had: And do out of Our Favour
towards you, admit you into the number and Society of other
Notaries, to the end that you may henceforward at [ ... ]
and all other places in England and Wales whatsoever
[clauses of limitation or exception, for instance
“except within the jurisdiction of the Incorporated
Company of Scriveners of London”] exercise such
office of Notary, hereby decreeing that full faith ought to
be given, as well in judgement as thereout, to the
Instruments to be from this time made by you: the Oath and
Declaration hereunder written having been by Us, or our
Master of the Faculties first required of you and by you
duly taken and subscribed.”
17 : They are generally also solicitors.
18 : Noel Cox, “The Notary Public: The Third Arm of
the Legal Profession” (2000) 6 New Zealand Business
Law Quarterly 321-335.
19 : Continental notaries tended more to assume the
position of a public official before whom wills were proved
and probate granted and by whom official records were
maintained. None of these functions applied under the
common law.
20 : 27 Edw III stat 2 (Eng).
21 : 25 Hen VIII c 21 (Eng).
22 : The Faculty is, in ecclesiastical law, a privilege or
special dispensation, granted to a person by favour and
indulgence to do that which by the common law he or she
could not do. This includes marrying without banns, or
erecting a monument in a church. These are granted in the
court of faculties, by the master of the faculties
(Magister ad Facultates), under the Ecclesiastical Licences
Act 1533-34 (25 Hen VIII c 21) (Eng). Mocket’s
Politia Ecclesiae Anglicanae, London, 1617 places the
appointment of notaries public first among the
archbishop’s power to dispense. In limited causes
Consistory Courts may also grant faculties.
23 : In many cases a notary may not practise in any other
profession, but there are some important exceptions. Thus,
in certain of the German länder, the notaries, called
Anwaltsnotare, may also practice as legal counsel, or
Rechtsanwälte.
24 : See also Gerald Haberkorn & Julie Z Wulf,
“The legal standard of care for notaries and their
employers” (1998) 31 John Marshall Law Review
735-748; Peter J van Alstyne, “The notary’s
duty to meticulously maintain a notary journal”
(1998) 31 John Marshall Law Review 777-802; Michael J Osty,
“Notary bonds and insurance: increasing the
protection for consumers and notaries” (1998) 31 John
Marshall Law Review 839-858; Nancy Perkins Spyke,
“Promoting the intermediate benefits of strict notary
regulation” (1998) 31 John Marshall Law Review
819-838; John T Henderson & Peter D Kovach,
“Administrative agency oversight of notarial
practice” (1998) 31 John Marshall Law Review 857-878;
William P Barrett, “Robber Stamps” (1987) 140
Forbes 144-145; R Jason Richards, “Stop! ... go
directly to jail, do not pass go and do not ask for a
notary” (1998) 31 John Marshall Law Review 879-902.
25 : In the common law, though not Commonwealth
jurisdiction of the Republic of Ireland, the Chief Justice
appoints notaries. Any person of integrity and good
standing may apply for appointment, but must demonstrate
knowledge of a relevant branch of law. This is shown either
by possessing a professional qualification, or by having
relevant experience. There must also be evidence of a need
for notarial services in the county where the applicant
seeks to practice. The professional body is the Faculty of
Notaries Public in Ireland; s 10 Courts (Supplemental
Provisions) Act 1961 (Ireland).
26 : See also N P Ready, Brooke’s Notary, Eleventh
ed., London, Sweet & Maxwell, 1992.
27 : Trakman, Leon, The Law Merchant – The Evolution
of Commercial Law (FB Rothman, Littleton, 1983); Benson,
Bruce, “The Spontaneous Evolution of Commercial
Law” (1989) 55 Southern Economic Journal 644.
28 : E.g. Bills of Exchange Act 1908 (NZ).
29 : “I will faithfully make Contracts or Instruments
for or between Party or Parties requiring the same and I
will not add or diminish anything without the Knowledge and
Consent of such Party or Parties that may alter the
substance of the Fact; I will not make or attest any Act,
Contract or Instrument, in which I shall know that there is
violence or fraud; and in all things I will act uprightly
and justly in the Business of a Public Notary, according to
the best of my Skill and Ability.”
30 : s 9 of the Oaths and Declarations Act 1957 (NZ)
confers upon notaries the authority to administer oaths and
statutory declarations. Similar authority is conferred upon
Justices of the Peace, solicitors, Registrars or Deputy
Registrars of the High Court or of any District Court, or
“any other person by law authorised to administer an
oath”, any employee of New Zealand Post Limited or
Post Office Bank Limited, officer in the service of the
Crown, or of a local authority from time to time authorised
for that purpose by the Minister of Justice or any member
of Parliament.
31 : Including those qualified to practise as barristers.
Barristers sole were precluded from acting as notaries
public; Code of Ethics (1980) rule 5.14, but the equivalent
rule is absent from the Rules of Professional Conduct for
Barristers and Solicitors (Fifth ed. 1998).
32 : Hutcheon v Mannington (1802) 6 Ves 823, 824 per Lord
Eldon, LC; 31 ER 1327.
33 : In New Zealand these are appointed, under s 47 of the
Judicature Act 1908 (NZ), by individual High Court judges,
by commission under the Seal of the High Court, to act in
any country or place beyond the jurisdiction of the Court,
for administering and taking oaths, affidavits or
affirmations. Appointments are published in the New Zealand
Gazette, as are revocations for sufficient cause (s 49).
34 : s 11.
35 : Courts and Legal Services Act 1990 (UK) s 113 (2).
Formerly, Commissioners for Oaths were solicitors appointed
by the Lord Chancellor.
36 : s 113 (1).
37 : This confers upon those solicitors with practising
certificates, the powers of the Commissioners for Oaths Act
1889, 1891, and s 24 of the Stamp Duty Management Act 1891.
38 : Courts and Legal Services Act 1990 (UK) s 113 (2).
39 : Courts and Legal Services Act 1990 (UK) s 113 (10).
Ecclesiastical notaries are excluded from the provision.
40 : In the Commonwealth (excepting Mauritius – a
civil law jurisdiction), the signature and seal of a notary
public proves itself; Brooke v Brooke (1881) 17 ChD 833.
41 : Courts and Legal Services Act 1990 (UK) s 57 (4).
42 : Order of Court 83 LS Gaz 670; General Notaries could
take the examinations in land Law and Trusts and Succession
any time after completing two years articles, and the
Conveyancing and Notarial Practice examinations after four
years. All had to be passed before an applicant could be
appointed a notary.
43 : Public Notaries Act 1801 (41 Geo III c 79) (UK).
44 : The Faculty is, in ecclesiastical law, a privilege or
special dispensation, granted to a person by favour and
indulgence to do that which by the common law he or she
could not do. This includes marrying without banns, or
erecting a monument in a church. Faculties are issued by
the Master of the Faculties as officer responsible for
exercising the special jurisdiction of the Archbishop of
Canterbury, as well as by the ordinary Consistory Courts in
England.
45 : Public Notaries Act 1801 (41 Geo III c 79) (UK) s 13.
Notaries must have had the freedom of the Scriveners’
Company to practise within the area covered by the
jurisdiction of that company. The Scriveners’
monopoly was abolished on 1 November 1999 by s 53 of the
Access to Justice Act 1999 (UK).
46 : Courts and Legal Services Act 1990 (UK) s 57 (2). An
alternative, for those not solicitors, was a seven year
apprenticeship for those within the jurisdiction of the
incorporated Company of Scriveners of London.
47 : Public Notaries Act 1833 (3 & 4 Will IV c 70)
(UK).
48 : From 1920 to 1990 the Lord Chancellor appointed those
in Wales.
49 : Public Notaries (Qualifications) Rules 1991 (UK).
50 : Since the passage of the Courts and Legal Services Act
1990 (UK) applications have been made in accordance with
the Public Notaries (Qualifications) Rules 1991 (UK). Rule
4 states that no person shall be admitted as a Notary to
practise within England and Wales unless they have taken
the oath of allegiance, and the oath under s 7 of the
Public Notaries Act 1843 (6 & 7 Vict c 90) (UK). The
applicant must undertake to maintain adequate indemnity
insurance.
If an application is approved, the notarial Faculty is
forwarded to New Zealand, and a commission is issued to a
Judge or other person to administer the oath of admission
and the oath of allegiance. The commissioner is authorised
to then issue the Faculty. A notary must be duly sworn,
admitted and enrolled in the Court where notaries
are
customarily sworn, admitted and enrolled – the Court
of Faculties. The commission is necessary to dispense with
this requirement.
51 : The following may apply to be appointed notaries for
ecclesiastical purposes only – the Registrars of
Provincial Courts of Canterbury and York, the Registrar to
the Archbishop of Wales, the Legal Adviser to General Synod
of the Church of England, the Legal Secretary to the
Governing Body of the Church of Wales, the Registrar of any
Diocese in England and Wales, and officers of the
Ecclesiastical Court in Jersey or Guernsey. If a solicitor,
the following are eligible for appointment – the
chapter clerk of any Cathedral Church in England or Wales,
or deputy thereof; Public Notaries (Qualifications) Rules
1991 (UK).
52 : They are appointed under the general authority of s 3
of the Ecclesiastical Licences Act 1533 (25 Hen VIII c 21)
(Eng).
53 : In 1884, when a Bill which would have absorbed the
notarial profession into that of the solicitors was
debated, there were said to be only 48 notaries public in
England, and of these, 33 where in the Scriveners’
Company area; HL Debates vol 287, series 3, columns
139-145. By the mid-1920s there were 500 in all. By 1987
there were 739 general and some 400 district notaries, as
well as some fifty ecclesiastical notaries. N P Ready,
Brookes’ Notary, Eleventh ed., London, Stevens, 1992,
p 19.
54 : Since s 22 and 23 respectively of the Solicitors Act
1974, notaries in England and Wales are also authorised to
carry out conveyancing and Probate work.
55 : Ecclesiastical Licences Act 1533-34 (25 Hen VIII c 21)
(Eng); the Public Notaries Act 1801 (41 Geo III c 79) (UK),
and the Public Notaries Act 1843 (6 & 7 Vict c 90)
(UK). Section 4 of the last Act empowers the Master to make
rules for the admission and regulation of Public Notaries
to practise “either in England or in any of Her
Majesty’s foreign territories, colonies, settlements,
dominions, forts, factories, or possessions”.
56 : 3 & 4 Will IV c 70 (UK).
57 : “No person in England shall be created to act as
a publick notary ... ”. The power of the Master of
the Faculties to appoint notaries is discretionary.
However, in order to qualify for appointment under the 1991
rules, an overseas applicant will generally have to satisfy
the Master that they have had three years suitable
employment in the business of a notary, solicitor or
licensed conveyancer within the preceding five years. Only
in exceptional cases will the Master appoint as a notary
someone who is not in practice as a solicitor; Bailleau v
Victorian Society of Notaries [1904] P180, 185 (Court of
Faculties).
58 : Public Notaries (Practising Certificates) Rules 1982,
1991 (UK).
59 : 25 Hen VIII c 21 (Eng).
60 : Bailleau v Victorian Society of Notaries [1904] P180
(Court of Faculties); Fay v Society of Notaries for the
State of Victoria [1904] P15 (Court of Faculties).
61 : Where Australian-admitted notaries may also practise.
62 : As for example, New South Wales, where the Public
Notaries Act 1985 (NSW) replaces notaries appointed by the
Master of the Faculties with those appointed by the Supreme
Court (ss 4, 5). The Act is however careful to stress
continuity (s 12).
63 : He sets the criteria for appointment, although an
indication of suitability of applicants, and of the need
for appointment of further notaries is always sought from
the local Societies of Notaries. The requirements are,
inter alia, that an applicant must be a solicitor in
current practice with at least ten years’
post-admission experience, a significant portion of which
must have been as a partner or sole practitioner.
Current legal experience is considered essential to deal
with legal issues that are often involved in matters with
which notaries must deal. A course of study prior to
admission is also conducted by a senior Notary in Auckland.
To the best of the knowledge of the President of the
Auckland District Society of Notaries, no persons other
than practising solicitors are appointed in New Zealand;
Letter from Robert Narev, President, Auckland District
Society of Notaries, c/- Glaister Ennor, Norfolk House, 18
High Street, PO Box 63, Auckland, dated 13 March 1996.
64 : It must also be remembered that the notary was a
product of the civil and canon law, and has never enjoyed
the full recognition of the common law.
65 : 25 Hen VIII c 21 (Eng). Section 3 of the
Ecclesiastical Licences Act 1533-34 can be taken to be
applicable in New Zealand, in so far as it allows
appointments to be made by the Archbishop of Canterbury by
Faculty, by reference to the Public Notaries Act 1843,
although the ecclesiastical law has no application even in
settled colonies – In re Lord Bishop of Natal (1864)
3 Moo PCC NS 115 at 148, 152; 16 ER 43, 57; approved in
Baldwin v Pascoe (1889) 7 NZLR 759, 769-70.
66 : 3 & 4 Will IV c 70 (UK).
67 : Report of the Law Reform Committee on the Imperial
Laws Application (1988) Appendix I, 18.
68 : Report of the Law Reform Committee on the Imperial
Laws Application (1988) Appendix I, 18.
69 : 25 Hen VIII c 21 (Eng).
70 : 41 Geo III c 79 (UK).
71 : 3 & 4 Will IV c 70 (UK).
72 : 6 & 7 Vict c 90 (UK).
73 : No indication was given in parliamentary debates on
the various readings of the Bill as to why this savings
clause was dropped. In fact, the Bill as enacted was shorn
of almost all its savings clauses, and makes a clean sweep
of a number of enactments, which, like the legislation
governing notaries, were still applicable.
74 : During the considerable consultation process leading
up to the Courts and Legal Services Act 1990 (UK), the
British Government, and specifically the Lord
Chancellor’s Department, took the view that the
notarial profession in New Zealand was well served by the
Faculty Office, and indeed the 1990 Act gave the Master
specific powers to continue to make rules and orders for
the governance of the profession. The views received
consistently over a number of years by Registrar of the
Faculty Office are that the connection with the Court of
Faculties are is much valued and that the guaranteed
independence of notarial appointments in New Zealand is
much appreciated – P F B Beesley to author, 6 May
1997.
75 : 25 Hen VIII c 21 (Eng).
76 : They are referred to in s 51 (2) and s 95 (1) and the
Second Schedule of the Bills of Exchange Act 1908 (NZ), s
242 of the Land Transfer Act 1952 (NZ), and s 9 of the
Oaths and Declarations Act 1957 (NZ) (as amended).
77 : In the strongly civil law-influenced Scots legal
system, every solicitor may apply to be appointed a notary,
and most do so. No one else can apply. The position of
Clerk to the Admission of Notaries Public in Scotland is
now held by the Secretary of the Law Society of Scotland;
Part IV of the Solicitors (Scotland) Act 1980 (UK) as
amended by the Solicitors (Scotland) Act 1988 (UK) and the
Law Reform (Miscellaneous Provisions) (Scotland) Act 1990
(UK).
In South Africa, an attorney, having passed the requisite
professional examination, is eligible to be enrolled as a
conveyancer and as a notary. They can continue as a notary
so long as they are enrolled on Roll of Notaries maintained
by Provincial Division of Supreme Court in which he or she
or she practises. The profession, of Dutch origins, was
first consolidated by the Attorneys Notaries and
Conveyencers Admission Act 1934; Bowler v Registrar of
Deeds 1939 AD 401.
78 : In Northern Ireland, notaries are appointed by the
Lord Chief Justice of Northern Ireland; s 112 Judicature
(Northern Ireland) Act 1978 (UK). They are not required to
be legally trained, although solicitors may be appointed
but must show need. In Bermuda the Supreme Court appoints
them. In the Canadian provinces every Barrister and
Solicitor is ex officio a notary public and Commissioner
for Oaths, though not all notaries are legally trained. In
St Lucia barristers and solicitors may practise as Notaries
Royal. The Lieutenant-Governor appoints Manx notaries.
79 : The process of whereby a notary’s signature and
seal is certified to be genuine is known as legalisation.
80 : Bill Laxon, “The Notary Public” [1997]
NZLJ 65.
81 : See, for example, Henry Dyson & Stephen Smith,
“What does a “notaire” do?” (1998)
142 Solicitors Journal 332; Pedro A Malavet, “The
foreign notarial legal services monopoly why should we
care?” (1998) 31 John Marshall Law Review 945-970.
82 : Paul M Hummer, “Legal issues in electronic
commerce in the insurance and reinsurance industry”
(1997) 64 Defense Counsel Journal 246-259; Mary F Theofanos
& John T Phillips, “Digital signatures: Signing
and notarizing electronic forms” (1994) 28 Records
Management Quarterly 18-24.
83 : Bill Laxon, “The Notary Public” [1997]
NZLJ 65.
84 : Vincent Gnoffo, “Notary law and practise for the
21st century: suggested modifications for the Model Notary
Act” (1997) 30 John Marshall Law Review 1063-1097;
Karla J Elliot, “The notarial seal: the last vestige
of notaries past” (1998) 31 John Marshall Law Review
903-910; Peter Ahlers, “The impact of technology on
the notary process” (1998) 31 John Marshall Law
Review 911-926.
85 : If only because they must at present be “a loyal
subject of Her Majesty”, and take the oath of
allegiance; Public Notaries (Qualifications) Rules 1991
(UK) rule 9 (2).
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