1 INTRODUCTION

I have no desire to “teach my grandmothers/fathers to suck eggs” and acknowledge that much of what follows will be familiar to Notary colleagues. I am embarking on a journey and the start of that excursion involves informing those who are less familiar with this territory than many of the readers of this paper. So when considering what follows please bear in mind this is an edited version of a research proposal and differs from the article which was submitted to WON since my thinking has developed.

This research and article are focussed on England and Wales since that is the jurisdiction with which I am most familiar but I am fascinated by the experience of notaries within other common law jurisdictions. To anticipate what follows there was a major divergence from Rome in the 16th Century but presumably there have been further departures since that time. What are they? In what way, if any, are Notaries within New Zealand, Bermuda, Canada and Jamaica operating differently from those within England and Wales? Anyone who wants to share their experience is welcome.

When colleagues have finished reading this piece if any feel compelled or obliged to make any observations, comments suggestions etc I would be delighted to hear from them. The email is contact@kirkhope-notary.uk.  

2 ABSTRACT

Notary Publics are the oldest, probably, the best qualified and one of the smallest branches of the legal profession within England and Wales. They have been appointed, within England and Wales, by the Archbishop of Canterbury since 1237 and are still appointed, within England and Wales, by the Archbishop under the Ecclesiastical Licenses Act 1533. Yet despite that Notaries remain, even among fellow legal professionals, as all Notaries can attest, I am certain, one of the least understood and most mysterious practitioners of law. The research I propose intends to shed light on this dusty area of legal practice by examining the surprising survival of the Notary Profession, its evolution and most importantly the contemporary relevance of the Notaries Publics. In simple terms, the questions are: “What did Notaries Do?” and “What do they do?” 

3 RESEARCH CONTEXT

It is a trite fact that England and Wales are “common law” jurisdictions while much of Europe, South America and so on are “civil law” territories. It is not part of this proposed research to explore the differences in the two systems or the reasons for the divergence. England and Wales were Catholic countries until the 1530s and although there had been growing divergence in legal structures for many decades “civil law” remained a significant influence in the laws of England and Wales particularly in areas such as property, probate, inheritance, admiralty and heraldic disputes. Notaries were a “creation” of the Roman Empire, the rules established by Justinian (527 – 565) still had, and have, application. Notaries were appointed by the Pope, even though that power, within England and Wales, was delegated to the Archbishop of Canterbury. Their history lies within the “civil law” tradition. Despite the schism of the 16th Century Notaries continued to have a purpose. Indeed a distinct Act of Parliament, the Ecclesiastical Licenses Act 1533, was considered necessary to ensure their continuing function. That Act created a new Court, the Court of Faculties, and a Faculty Office one of whose functions, which purpose continues, was to hear complaints about Notaries. (As an aside, as far as the authors know, but, would welcome being corrected, there is no country which does not have a Notary Profession or equivalent all of whom owe their origins to the Roman Empire.) The Notaries practising within the common law owe their beginnings both to the Roman Empire and to the split with Rome in the 16th century. 

Notaries are a hangover from a previous regime which office continues even after a history, within England and Wales, which is a thousand years old, were appointed by a church dignitary from 1237 and have been appointed by the Church of England since 1533. It is worth noting that on appointment a Notary Public, within England and Wales, swears an oath of allegiance to the Sovereign which means Notaries are public officials, unlike solicitors and barristers. This is significant since the principle in international law is that “public officials” like, for example, Registrars of Births and Death, don’t lie or, expressed rather more formally, their word has “probative force” and their primary duty is to the transaction. 

While the very fact of the continuance of the office of Notary is, arguably, surprising and worthy of examination by itself longevity is not of itself a justification for survival. The greater question is why does the office survive and what purpose does it serve? Although within England and Wales there is a love of tradition, which affection I share, this quaint and unusual profession would not have endured if there had not been a need for the services they provided.

I shall return to this later but the question, on its face, is simple. Why did the distinct legal profession of Notary Public survive? Already in the 16th Century, the barrister and solicitors professions were developing. England and Wales had split from Rome so what purpose did Notaries serve as a distinct from other branches of the legal profession? In straightforward terms what benefit did they add? What did Notaries do? If one could break this down what evidence exists for Notary Activity from say:

1533 to 1700

1700 to 1800

1800 to 1900

1900 to 2000

In what transactions were Notaries involved and what sort of documents did they Notarise?

The distinguishing feature of the Notaries work is, of course, its international nature. Clients are often surprised to find for many jurisdictions only the word of a Notary will do. We have many examples of documents prepared by solicitors which a foreign jurisdiction rejects because it has not been prepared by a Notary at sometimes great cost and inconvenience to the client. The United Kingdom Foreign and Commonwealth Office reveal that 120,000 Apostilles are issued in respect of Notarial Attestation and or certification each year. That is the “tip of the iceberg”. For example this week I have prepared four notarial acts only one of which required an Apostille. As far as I am aware, no research has been done to establish how many Notarial Acts in total are completed each year within England and Wales, it is one of the things this enquiry is intended to establish, as a guestimate, and the figure is crude, I acknowledge, to extrapolate from my experience, it would appear 750 notaries are producing at least 500,000 Notarial Acts a year all of which are in connection with some transaction which involves a foreign jurisdiction. The figures take no account of Notarial Acts by Scrivener and Ecclesiastical Notaries. These cases can involve significant commercial matters. To offer examples, local to me, the contracts and other documents entered into by Imperial Tobacco, Rolls Royce, B.A.E., and G.K.N., to name just a few instances, would not be recognised or have effect without their being notarised. Bristol also has two busy ports – Royal Portbury Dock and Avonmouth. Both deal with large volumes of international trade which frequently require the services of a Notary, especially concerning loss or damage to the ships themselves and damage or loss of their cargoes. The services provided by Notaries are vital to international trade. (In other words, having considered what Notaries did the next question is what do they do?)

3.1 Building on previous work

Clearly the area in which I am interested is not totally unexplored. As always I stand on the shoulders of Giants. I have, of course, engaged in some initial research. The following are a selection of works which I have already considered and to which I shall refer:

Peter Lawson “The English Notary’s Place in History” 2008

Dorothy Newell “English Notaries at the Papal Curia in the Fifteenth Century with Special Reference to William Swan” Ph. D. Thesis University of Manchester 1933

James Cowie Brown “The origin and Early History of the Office of Notary” Ph.D. Thesis Edinburgh University 1936.

Kitrina Lindsay Bevan “Clerks and Scriveners” Ph. D. Thesis University of Exeter 2013

C R Cheney “Notaries public in England in the thirteenth and fourteenth centuries” Clarendon Press 1972

Nigel Ramsey “Scriveners and Notaries as Legal Intermediaries in later Medieval England” Gloucester 1991

Nigel Ramsey “The History of the Notary in England” Baden Baden 2009

A G Dunford “The General Notary” The Notaries Society 2009 

Nigel Harding “Concerning Notaries” Dissertation Master of Laws – Anglia Ruskin University 2015

Brooks, Helmholtz and Stein “Notaries Public in England since the Reformation” London 1991

N P Ready “Brooke’s Notary” Sweet and Maxwell 2013

I have not studied all of the above works in detail. However, from the material I have read, I would assert there is much material which enables the researcher to gain a historical perspective but there is very little which explains why in England and Wales Notaries survive as a separate profession. It does not in Scotland, for example.

4 RESEARCH METHODS

An advantage of the “internet world” is so much material is available online. I have already conducted some initial desk research and expect to do more. Thus, for example, I shall explore, or have explored:

Academia.Edu for papers on the topic of Notaries

EThOS for Ph.D’s on the subject of Notaries

The British Library

The National Archives

The Library of Congress, Washington

Westlaw

LexisNexis

Parliamentary Papers

Hansard

I will also search the records of Lambeth Palace Library, the Canterbury Cathedral Archives, of the Society of Scrivener Notaries and of the Worshipful Company of Scrivener Notaries.

Clearly as a consequence of my initial researches I expect to discover other sources with which I am presently unfamiliar.

The resources outlined above are interesting and would inform the questions of the survival and evolution of the Notary profession. However the third component of this research proposal is essential. The “Contemporary Unique Legal Status of Notary Publics within England and Wales”.

4.1 What do Notaries Do?

One of the virtues of the Notary profession is that it is quite small and very friendly. Advice is always available. In particular, there is a discussion forum “Notary Talk” which I intend to use to conduct surveys. In addition, there is a publication entitled “The Notary” whose good offices it is already agreed we will “exploit” to the maximum of their patience. We want to establish if we can, how many Notarial Acts are conducted each year and what is the nature of those Acts. We will also prevail on the good offices of the Notaries Society to assist. This will inform the issue of the contemporary relevance of the Notary within England and Wales.

As I explained above Notary Publics are public officials and this has a number of consequences. Firstly each notarial act has to be recorded by a notary in a register or protocol, For example, since February, at the time of writing, one of the authors of this paper has completed 150 notarial acts. All Notaries would be able to give a similar exact number. Not only that, every notary would be able to provide a description of the nature of the act. Furthermore, to simplify, many Notarial Acts are public documents. Thus when we retire or die we need to ensure our records are retained and available in certain circumstances. It follows, in principle, the detailed data is available and could be provided by notaries without a great deal of difficulty should they wish to do so. This is obviously a considerable advantage.

The weakness is that Notaries may not choose to participate in any survey but I have to say, based on past experience, Notaries are such a close-knit community their willingness to cooperate is admirable. 

One particular area of interest are the costs imposed on Notaries as a function of increasing regulation and the longer-term impact since the profession is small and many Notaries, particularly in rural areas, continue to act as a public service as they barely cover the regulatory costs. We reiterate there are some 750 Notaries within England and Wales compared with 125,000 solicitors. The consequence is, for example, I operate from a Somerset town and if I ceased to practice clients would have a 22 return journey either to Bristol or Taunton to find another Notary. To expand the point I have just seen a lady who wished for a “certificate of existence” in connection with a pension from Lithuania. A simple matter but a cause of some inconvenience if she had to travel some 44 miles there and back to get the matter completed.  The Faculty Office is aware of the issue and is conducting surveys whose results I intend to utilise.

I shall also conduct a review of the various Acts of Parliament applicable to Notaries and the various regulations to which they are subject.  

5 SIGNIFICANCE OF RESEARCH

Let me start by saying that, although, this is not academically significant I qualified as a Notary in 2004. It’s an achievement of which I am proud. I still practice as a Notary and find clients, almost without exception, interested and curious about the role of the Notary and its history. I am a member of a profession which has survived internationally for eighteen hundred years and within England and Wales for over a thousand years. As a Notary I am appointed, still, by the Archbishop of Canterbury who in turn is subject to the head of the Church of England, the Sovereign. As a Notary and, thus, a public official my documents are considered to be evidentiary, they are true on their face. 

Notwithstanding its long history, the Notarial Profession is a modern profession not averse to change ready to embrace modern developments, for example, the changes brought about by the Civil Procedure Rules 1988 rule 32. As I hope I have indicated, in my view, our profession is not simply a quaint and charming hangover from a bygone ago, with which the English and Welsh legal system is littered, it serves a necessary and important function in the world of 2018. I live in Weston super Mare, a small Somerset town, and every week I receive phone calls from people who require the services of a Notary and only a Notary will do. This week I have prepared documents in connection with a Swiss Bank Account, an inheritance in Spain in which I was asked to provide a “certificate of law”, a timeshare in Florida, completing applications for Irish and Polish passports and selling properties in Bulgaria and Malaysia.  

The role of the Notary is of consequence and with BREXIT likely to become more significant. In particular civil law, notaries view common law notaries with some disdain. Since both branches are fruits of the same tree and the Notaries of England and Wales have rigorous training and regulation it is hoped this research will assist in informing civil law notaries which is a not insignificant ambition with BREXIT on the horizon.

The Notaries Society, the professional body of Notary Publics, is enthusiastic about this project and are keen for it to be pursued. This Research Proposal has been circulated amongst council members.

6 CONCLUSION

In agreeing to this paper being published I am inviting my colleagues to join me on a journey. I believe this is an ambitious and exciting project and am looking forward and enthusiastic about a task which I anticipate will take some 2/3 years to complete. I welcome contributions, suggestions and observations and indeed look forward to the dialogue which I hope is generated. 

Anyone who wishes to contact me can email contact@kirkhope-notary.uk and rest assured I will be pleased to hear from you.

The research could be summarised as follows:

From 1533 to, say, 1960, what did Notaries do? The answer to this question would help answer the question of why did they survive?

Next, what do Notaries do? How many Notarial Acts are completed each year and what sort of acts are they?

Finally and this is a question, probably, for another day:

Since Notaries, presumably, were exported from England and Wales to what was once the Empire, when, for example, did the first Notaries appear in, say, Bahamas, Bermuda, New Zealand etc? What did they do? And how do their practices and procedures differ from those of England and Wales today?

This paper has benefited from the comments of Anthony Northey, Andrew Gregg and Christopher Vaughan to whom I express my thanks.