Schedule A - Historical Background
England and Wales
It has been suggested that notaries may have practised during the Roman occupation and have definitely practised in England since Norman times. In 1237 it was noted by the Papal General Council that there were then no notaries in England, but there is evidence that both papal and imperial notaries operated in England shortly after that time. By the fourteenth century the English King and his courts were seeking to anglicise the profession. The principal statute, the Ecclesiastical Licences Act 1533, delegated to the Archbishop of Canterbury the right to grant Faculties to Notaries which had previously been granted by the papal legates, a right which the King had taken for himself as part of the English Reformation. The existence and authority of the English notary thus arises in direct succession from the papal authority. It is earlier than the development of the English common law which marked the separation of the English legal system from the systems of other European countries.
Notaries have always been recognised as one of the legal professions practising in England and, until the rationalisation of the legal professions in the nineteenth century and the redistribution of tasks and of monopolies among them, notaries were largely concerned with the transfer of immoveable property and with business contracts and transactions. The Notarial Profession is in fact the oldest of the 3 legal professions in England and Wales.
A full history of the profession will be found in Brooke's Notary (13th edition, 2009, Sweet & Maxwell).
The statutes directing and defining notaries in England and Wales are the Public Notaries Acts 1801 and 1843, the Courts and Legal Services Act 1990 and the Legal Services Act 2007.
Notaries Public form a separate and distinct caste within the legal profession in Scotland notwithstanding that it has until recently been a condition precedent of admission as a notary public that one is first a solicitor. The ancient profession of a notary public is internationally recognised and the development of that branch of the legal profession in Scotland shows strong and clear developmental links with the civil law legal systems of Europe.
Thirteenth and Fourteenth Centuries
It has been noted that only a few notaries were active in Scotland during the thirteenth century. 35 have been discovered performing a notarial function during the fourteenth century. During the early medieval period, notaries could either be created by the Pope or by the Holy Roman Emperor. A fair proportion of notaries held a joint commission from both authorities. There is evidence that the Pope delegated the rare right to create a notary in Scotland to, for example, the Bishop of Dunkeld in 1287 and, although the right does not appear to have been exercised for long, to the Bishop of Galloway in 1364. In the early fifteenth century, a Prior of St. Andrews had a mandate to create six notaries. This process of delegation to enable notaries to be created continued through the fifteenth century and into the sixteenth century.
Royal Notaries – the Fifteenth and Sixteenth Centuries
An Act of James III in 1469 stated that “Notaris and Tabelliounis sould be maid be the King and not be the Emperour”. This assumption by the royal power of the control over the admission of notaries public settled the pattern for the future. Papal notaries were, by inference, restricted to dealing with matters within the sphere of spirituality.
The legislation of the mid-sixteenth century consolidated the law relating to the appointment of notaries. An Act of James V in 1540 relates to the “electioun and examinatioun of Notaris”. Later legalisation in 1555 states that “Notaris sould be examinat be the Lordis of Counsal and thair protocollis markit”. In 1563, an Act of Mary Queen of Scots ordained that “no person tak upon hand to use and exerce the office of notarie, be na maner of creation, to be maid in onie time to come fra this day forth under the pain of death, without thae be maid and treat be the Queenis Majesties special letters and thereafter examinid and admitted to the Lordis of Sessioun and College of Justice quha sall tak thair aithes” for due and lawful using of the said office of notarie and cause to register “thair sign and subscriptioun” which they shall “use in all times after the said admission”. In 1584, royal control over the notarial function was extended by a provision which prohibited Ministers from acting as notaries except in the making of testaments.
The Act of 1563 reiterated earlier legislation under James V and was later repeated under James VI in 1587.
James VI was concerned to regulate notaries and during his reign it was enacted that the admission of notaries should cease for five years and that none should be admitted thereafter except those who had a reasonable understanding of Latin and were otherwise capable. The Act further provided that the apprentice notary should serve seven years with a skilled legal practitioner prior to admission and that the Master's testimony to the applicant's honesty and qualification was required by the Lords of Council and Session.
The procedure for admission remained substantially unchanged from 1587 until the late nineteenth century.
The Law Agents (Scotland) Act 1873
This Act provided that any enrolled solicitor could apply for admission as a notary and that the Court should admit him on payment of the appropriate stamp duty. The need to find caution which was imposed during the medieval epoch was abolished.
The Law Agents (Scotland) Amendment Act 1896
This Act provided that after a transitional period of one year, no person should be admitted as a notary public in Scotland until he also had been admitted as a law agent. Accordingly, no-one could be admitted to the office of notary as a separate and independent office after 14th August 1897. The provisions of the 1896 Act were re-enacted in 1933 in terms of the Solicitors (Scotland) Act 1933.
The legislation governing the admission of notaries remained in solicitors' legislation and was consolidated in terms of Part V of the Solicitors (Scotland) Act 1980 as amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990. Section 57 of the 1980 Act provides that no person shall be admitted as a notary public unless admitted and enrolled as a solicitor.
Today, the responsibility for admission and registration of Notaries lies with the Council of the Law Society of Scotland under the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990. A petition to the Court of Session for admission as a Solicitor can include an application for admission as a Notary Public and, in practice, usually does. Since November 2007 only solicitors/notaries in possession of a practising certificate can act as notaries in Scotland: Legal Profession and Legal Aid (Scotland) Act 2007 Section 62.
Notaries in Northern Ireland are appointed by the Lord Chief Justice of Northern Ireland by virtue of the Judicature (Northern Ireland) Act 1978 which grants power to appoint an individual to act as Notary Public in Northern Ireland, subject to such conditions or limits as to territory, duration or purpose as may be specified in the certificate of appointment, and in accordance with the procedure prescribed by Order 107 of the Rules of the Supreme Court of Northern Ireland.
Appointment to the office of Notary Public must be preceded by six years' practice as a solicitor. Application for such appointment is in the form of a Memorial which shows: a) that the applicant is a solicitor of the Supreme Court of Northern Ireland; b) the place at which the applicant has practised as a solicitor for how long; c) the number of practising notaries in Northern Ireland; d) reasons why such appointment would be in the public interest.
The Memorial is accompanied by a certificate in support of the statements in the Memorial and confirming the fitness of the applicant, signed by “magistrates, traders and residents” in the district in which the applicant practises as a solicitor. A copy is served on all Notaries Public practising in Northern Ireland, any of whom may object to the proposed appointment.
The Memorial concludes with the request that the applicant be appointed “to practise throughout Northern Ireland”. Although the Lord Chief Justice has the power to appoint notaries subject to such conditions and to such limits as to territory, duration and purpose as he may deem appropriate, a notary, whether appointed prior to the Judicature Act 1978 or pursuant to it, may as a general rule practise anywhere in Northern Ireland.
The College of Notaries Northern Ireland (c/o address below) is a collective body representing Notaries in Northern Ireland and members subscribe to its Code of Conduct. The college has an advisory function only as all executive power remains vested in the Lord Chief Justice. A current list of Notaries Public in Northern Ireland is available on the website of the Northern Ireland Law Society at www.lawsoc-ni.org
The appointment of a Notary Public in Northern Ireland is revocable and subject to modification at the discretion of the Lord Chief Justice. When a solicitor who is a notary ceases to practise as a solicitor, he must also give up his notarial practice.
Thursday, 11 February 2010
Paul K Nolan & Co
Solicitors & Notary Public, 135 Upper Lisburn Road, Finaghy,
Belfast BT10 0LH
T: 02890 301113
Republic of Ireland
In Ireland, a notary public is the holder of a public office appointed by law to carry out the duties and functions which by law and custom are associated with that office. It is an ancient and honourable profession. There is archival evidence that the office existed in Ireland in the 14th century. It probably existed earlier. Prior to the Reformation, appointments of notaries public (then described as public notaries) in Ireland were made by the Archbishop of Canterbury and the Archbishop of Armagh under papal authority and dispensations. After the Reformation persons appointed to the office of notary public received their appointments by royal authority from the crown and not by papal authority.
In 1871, under the Matrimonial Causes and Marriage Law (Ireland) Amendment Act 1870, the jurisdiction previously exercised by the Archbishop of Armagh in the appointment of notaries was vested in and became exercisable by the Lord Chancellor of Ireland.
In 1920, the power to appoint notaries public was transferred to the Lord Lieutenant of Ireland. In 1924, upon the establishment of the Irish Free State (Saorstat Eireann) the power of appointment and jurisdiction over notaries public in the Irish Free State was transferred to the Chief Justice of the Irish Free State. In 1961 following the reorganisation and reestablishment of the courts of Ireland the power to appoint notaries public became exercisable by the Chief Justice of Ireland. This continues to be the position in Ireland.
Notaries are not appointed for any term of years but at the pleasure (will) of the Chief Justice though it is customary for a notary to state that he or she has been appointed for life in order to distinguish the tenure of an Irish notary from notaries in other jurisdictions who may be appointed for a term of years renewable.
Notaries public are appointed for defined areas or districts – usually a county or city and county but in recent times, because of population expansion and movement and the trend in establishing commercial and industrial enterprises outside cities and major towns, it has become the practice to seek appointment for a particular county and its bordering counties.