The Role of the Notary in Scotland
Sixteenth century legislation provided important roles for the notary in relation to writs dealing with heritable property. The Subscription of Deeds Act 1540 required the subscription of a notary to a deed and the Deeds Act 1579 provided that “all writs importing heritable title or other bonds of obligations of great importance should be subscribed and sealed by the principal...” or “twa famous notars”, whilst the Subscription of Deeds Act 1681 provided that the witnesses should hear the party give warrant to the notaries and in evidence thereof touch their pens.
The requirement of touching the notary's pen was removed by the Conveyancing Act 1874 which provided that without prejudice to the previous law and practice, the deed having been read over to the grantor might be validly executed on his behalf if he were from any cause, permanent or temporary, unable to write by one notary or justice of the peace subscribing for him without touching the pen, or before two witnesses and obtaining a docquet in the form of Schedule 1 of the Act. The Conveyancing (Scotland) Act 1924 authorised notarial execution by a solicitor or notary public or justice of the peace or, in respect of wills or other testamentary writings, by a parish minister acting in his own parish or any minister of the Church of Scotland appointed to a charge to officiate as minister in any parish in which part of his charge is situated, provided certain statutory requirements are fulfilled. This provision has been modernised by the Requirements of Writing (Scotland) Act 1995 which authorises execution of a document on the behalf of persons who are blind or unable to write by advocates, justices of the peace, sheriff clerks, solicitors and, for documents executed outside Scotland, notaries public or others with official authority.
The notary originally had a monopoly in relation to the preparation and execution of a number of deeds and, in particular, in relation to land transfers. Until recording of deeds was introduced in 1617, the notaries Protocol Book was effectively the only record of land transactions. The Titles to Land (Scotland) Act 1858 abolished instruments of sasine and rendered competent the recording of deeds de piano with warrant. Registration in this statutory form deprived the notary of much of his function. Further inroads into the use of notaries were made by the Title to Land Consolidation (Scotland) Act 1868, the Conveyancing (Scotland) Act 1874 and the Conveyancing (Scotland) Act 1924 whereby notarial instruments and charters of progress were virtually abolished and notices of title and certificates of no surplus could be made not only by a notary but also by a solicitor.
The Notarial Protocol and Notarial Instruments
The early medieval notary held a pivotal role in the provision of evidence for the courts and the formulation of deeds and documents, the authenticity of which depended upon notarial involvement.
Many different types of deeds were executed by notaries including wills, wadsets, contracts of marriage, instruments of sasine and renunciations; all deeds which affected the transfer of property or wealth. It appears that most notaries would write an abbreviate of the actual deed or instrument. This would record the appearance of parties before the notary and any witnesses and provide a short statement of whatever transaction took place. This note would then be engrossed as a final instrument for execution. The instrument would then be recorded in the notary's protocol book. The protocol book eventually represented a record of all instruments made by the notary and was of great evidential value. Balfour in his Practicks records that “Ane instrument beand discrepant in divers substancial puntics fra the Notar's protocol-buke, makis na faith, quia magis creditur protocollo, quam instrumento”.
The Notary's subscription and sign manual was an important feature; each was unique and the sign manual, described as a “seal in pen and ink instead of wax” could be quite elaborate incorporating, for example, heraldic devices. A stamp form of a notarial sign is recorded as early as 1557. Protocol books and notarial instruments were important aspects of medieval Scottish legal life. Balfour records a number of cases relating to the value to be ascribed to instruments and protocols. Protocols today can provide much in the way of useful historical, legal and sociological data to build up an accurate picture of life in Scotland during the Middle Ages.
Administration of Oaths
The administration of oaths has always been an important function of the notary. The Solicitors (Scotland) Act 1980, Section 39 provided that in any case where the administration of an oath or the receipt of an affidavit or solemn affirmation is authorised by or under any enactment it shall be lawful for the oath to be administered or, as the case may be, for the affidavit or affirmation to be received by a notary public. The provisions of Section 59 do not apply to any matter in respect of the preservation of the peace, a prosecution, trial or punishment of an offence, or any proceedings before either House of Parliament or the Scottish Parliament or any Parliamentary Committee.
Modern Fay Function of the Notary
After a long period of decline during the nineteenth century, the late twentieth century has seen a resurgence in a requirement for the notary's services.
1. Oaths, Affidavits and Affirmations – One of the traditional functions of the Notary Public in Scotland which remains today is the acting where the legal validity of a document requires the administration of an Oath or the receipt of an Affidavit or solemn Affirmation. Under the Solicitors (Scotland) Act 1980, in such cases the Oath may be administered or the Affidavit or Affirmation received by a Notary Public. Such Affidavit or Affirmation should not relate to any matter in respect of preservation of the peace; a prosecution; trial or punishment of an offence; or any proceedings before either House of Parliament or the Scottish Parliament or any Parliamentary Committee.
2. Affidavits in Undefended Divorces – Following the Divorce (Scotland) Act 1976 it is no longer necessary to have parole evidence in undefined divorces. Instead, appropriate Affidavit evidence can be used. Such Affidavits or Affirmations are made before Notaries Public, which has increased the work undertaken by Notaries in recent years, as noted in the introduction.
3. Affidavits under the Abolition of Feudal Tenure etc. (Scotland) Act 2000 and the Title Conditions (Scotland) Act 2003 – Under these Acts there are various transitional provisions which require notices sworn before a Notary, including those relating to conversion and preservation of real burdens. These provisions have ended but notices of termination of real burdens under s20 of the 2003 Act must be sworn before a Notary.
4. Protests – where a protest is made in maritime matters, e.g. against poor wind and weather condition a sea captain on arrival in a port, this is done before a Notary Public. Some Notaries retain protocol books for this specific purpose. In addition, when a protest is required for bills of exchange or promissory notes, this is also done before a Notary.
5. Foreign Documents – Many documents for use in foreign jurisdictions require execution or certification before a Notary and Notaries are frequently consulted by clients requiring documents authenticated in such matters, e.g. in the winding up of estates or in Court actions abroad. Powers of Attorney for use abroad often require to be executed before a Notary to constitute their validity.
6. Notarial execution – Since 1540 Notaries have been empowered to sign documents on behalf of persons who are blind or unable to write. This has been a useful power frequently used by Notaries. Since 1st August 1995, the requirements and procedure involved have been simplified by the Requirements of Writing (Scotland) Act 1995.
7. Miscellaneous – Other less frequent functions can be noted including the entry of a person to overseas territories; completion of the documentation required for the registration of a company in certain foreign jurisdictions and drawing for repayment of Bonds of Debenture.