Despite being the oldest legal profession to practise in this country, the English and Welsh notary has been largely ignored in the evolution of the Common Law and the development of our unique legal system.
This paper seeks to trace the role of the English and Welsh notary[2] in our legal system over the past millennium and to highlight the challenges that face the notary in the 21st century as the European Union plays an ever more important part in our commercial and legal lives. Sadly neither the Common Law courts nor the Continental Civil Law systems have fully acknowledged the role of our notaries nor the contribution that they have been able to make to the societies which each judicial system serves. Certainly in the Common Law courts the concept of "legal certainty" which the act of a notary provides has never been properly understood nor acknowledged.
The earliest record of notaries in England is probably to be found in their attendance and work of recording the proceedings at the Council of Hereford in September 672 when the newly appointed Archbishop Theodore of Tarsus, a Greek monk, established a unified Church in England.
The first notary of whom we know the name was Swardius who attested a grant of land from King Edward the Confessor (1042-1066) to the Abbot of Westminster.
But such notaries were likely to have been trained on the Continent at universities such as the great school of law at Bologna and were used mainly by ecclesiastical bodies in this country. These
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men knew the needs and requirements of the Papal court which despite its distance from England, handled so much English business but they could not be regarded as "home grown"[3].
The use of notaries to authenticate written documents and the acts between parties was not a feature of the Common Law which was prepared to recognise the existence of a contract between two parties even though there was no written record of its terms. Thus it was sufficient to hand over a piece of turf or a branch of a tree from the land in question to complete its transfer to a new owner.
This was in marked contrast to the practice of Continental courts which sought to ensure the reduction of contacts to written form and placed great reliance on the part that notaries could play in the performance of this task.
It was an Italian notary, Giovanni of Bologna who whilst practising in the City of London in the thirteenth century observed most succinctly the difference which then existed between the approach to the use of public documents in the Common Law and that of Italian lawyers who were trained in the discipline of the Roman precepts of Justinian in this manner:
"Italians, like cautious men, want to have a public document 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."
The adoption in this country of the legal trial presided over by a judge and the use of a jury of local men to determine the facts, played its part in preferring oral evidence to that of written material. This reliance on oral testimony was a central feature of the Common Law and was well established in England by the 13th century[4]. The juryman was not expected to be literate. He was expected to bring his local knowledge to bear on the case and even today he will be exhorted by the judge "to listen to the evidence". The Rule against Hearsay discouraged the admissibility of a written document to record a transaction when the parties were available to give first hand evidence of what they had agreed[5].
The emergence of the feudal class of landed nobility following the Conquest of 1066[6] also saw the adoption of the use of personal seals often bearing the newly introduced heraldic devices, as a means for authenticating transactions that had been reduced to writing and hence today we still speak of "contracts under seal". However the acceptance of the importance and usefulness of written records of commercial transactions was recognised by the Statutes of Merchants in 1285
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which required a clerk to be available in all major towns to record commercial transactions. Indeed by 1300's most conveyances of land were also expected to be in documentary form.
In 1237, Cardinal Otho, sitting at St Paul's Cathedral to review the state of the Church in England, found that because there were at that time no notaries practising in England, ecclesiastical authorities ought to adopt the use of an authentic seal to mark the making of a deed or other written act. It is interesting to note that whereas the seals used by the barons were of a personal nature, the Canon of the General Council of London as ordained by the Cardinal, required the ecclesiastical seal to be of a corporate nature, to be passed from one office holder to his successor which is still the practice today[7].
By the 13th century, notaries had established their role in the judicial and administrative organisations throughout Western Europe. There were notaries appointed by the Pope and those whose faculty was given to them by the Holy Roman Emperor. When Edward I (1272-1327) came to the throne, he did much to establish an effective administration and his Chancery consisted of the main offices of State such as a secretarial bureau, a home office, a foreign office and made provision for the administration of justice throughout the Kingdom. Amongst the staff were notaries of the Apostolic See of whom it was said "their authenticity would be admitted all the world over"[8].
In 1279 Pope Nicholas III[9] delegated to John Pecham, the then Archbishop of Canterbury, a faculty for appointing papal notaries. This was not exclusive to Canterbury as a similar faculty was granted to the Bishop of Winchester and to the Chancellor of Oxford. Archbishop Pecham was so enthusiastic in his endeavours to train English clerks in notarial practice that he brought a notary called John from Bologna to England to supervise the training of the English notaries. Hence it was this delegated power given to the Archbishop of Canterbury to appoint papal notaries that was to have such a singular significance later under Henry VIII (1509-1547).
However the presence of Imperial notaries in England was objected to by Edward I and in 1320 by an ordinance addressed to the Archbishop, Edward forbad him to admit any notary exercising this office by imperial authority.
The dislike of the Common Law courts for notaries was demonstrated during the reign of Edward II (1327-1377) when Sir John Bourne presumed to bring a papal notary into the Court of Exchequer to notarise an instrument and was sent to prison for his pains.
This dislike of notaries appointed by a "foreign authority" was also expressed by Richard II (1377-1399) who in 1393-4 introduced the Statute of Provisions and Praemaunire against such Papal usurpations. This Statute was to be much relied upon 150 years later by Henry VIII.
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In pre-Reformation England, the Papal jurisdiction in such matters as the granting of faculties to notaries was generally deputed to the papal legate in England and Ireland who in turn authorised the Archbishop of Canterbury to appoint notaries for both countries; this power was later granted to the Archbishop of Armagh in respect of Ireland.
Henry VIII was accorded in 1520 by Pope Leo X the title of Fidei Defensor (Defender of the Faith)[10] for his fulsome and scholarly denunciation of the teachings of Martin Luther expressed in his work Assertio Septem Sacramentorum. But this did not prevent him seeking to withdraw from papal oversight when the issue of his divorce from Catharine of Aragon arose. Hence by the Ecclesiastical Licences Act 1533, appeals to Rome were forbidden and all licences, dispensations, compositions and faculties formerly sought from the Pope, had now to be sought from the Archbishop of Canterbury. Indeed so wide are the powers granted to the Archbishop by this Act which is still in force, that some have suggested in jest that it gives the Archbishop sufficient power to administer the country without the need to resort to Parliament.
This oversight of the notarial profession by the Archbishop still continues and ensures that the profession is both treated as a legal discipline in its own right as well as maintaining its independence from the central governmental departments. This authority is granted by Parliament as is the case case in many other European countries where the authority of their notaries also stems from their respective parliaments.
In England, the Public Notaries Acts of 1801, 1833 and 1843 confirmed the status and existence of notaries as a separate profession. This continues to be the case with further recognition being incorporated in the Courts and Legal Services Act 1990 and the Legal Services Act 2007.
In Ireland the 19th century saw the appointment of notaries being regulated by the Public Notaries (Ireland) Act 1821. With the establishment of the Irish Free State in 1922, various provisions of the Oireachtas - the National Parliament - provided for the appointment of Irish notaries.
But there remains one singular difference between notaries in Ireland, both in the South and the North and notaries in England and Wales. Unlike their Irish colleagues, English and Welsh notaries who are not practising solicitors retain their historic right to perform all forms of non contentious business whereas notaries in Ireland who are not solicitors must give an undertaking to the Chief Justice or the Lord Chef Justice as the case may be, not to do so.
This paper does not seek to address the role of notaries in Scotland.
As this short account of the history of notaries in England, Wales and Ireland demonstrates, all notaries in these Isles share a common heritage and authority.
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A detailed account of the evolution of the Common Law is beyond the scope of this paper but it stems from a number of factors:
i. Prior to the Norman Conquest, Saxon England had an established regime of local courts based on the Hundred and the Shire and the use of the royal appointed ealdorman, the local bishop and the shire reeve to preside over the administration of local justice in these courts[11].
ii. As the use of the writ issued out of the royal chancery and addressed to the sheriffs in shire or county grew following the Norman Conquest and the forms of action and the remedies available under the writ multiplied so did the need for royal justices to hear these pleas either in Westminster or by travelling on circuit to hold courts in the counties.
iii. The decisions of these royal justices were recorded on the rolls of the court and in turn these were studied by the advocates living in the fraternities which became known as the Inns of Chancery and Inns of Court. Thus the judges were slowly developing a body of Law common to the whole kingdom based on their own legal training which included an understanding of the principles of Roman Law as codified by Justinian and by their own appreciation of local community law as gleaned from the decisions of the juries.
iv. The students of the Inns of Court trained in the Common Law have been described as belonging to the "Third University of England" for it was not necessary for them to obtain a degree in law from either of the universities of Oxford or Cambridge where Roman law was taught, before they were allowed to practise before the Common Law Courts though many may have learnt their Roman Law at the university and their Common Law at their Inn of Court.
Generally there was no place for the notary in the Common Law courts. Their practice was confined to those courts where Roman civil law prevailed.
Sir John Baker[12] had this to say of the notary in England in 15th and 16th centuries:
"Notaries were in much the same position (as scriveners and attorneys) on the fringes of legal practice, they had no official place in the secular legal system but had employment in ecclesiastical and mercantile affairs and their status was recognised by Law."
When the break from Rome came in the reign of Henry VIII, it was only natural that the regulation of English notaries and the granting of their faculty should be given to the Archbishop of Canterbury by the Ecclesiastical Licences Act 1533. Later in that century, the task of granting a
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faculty for Irish notaries reverted to the Archbishop of Armagh. English and Irish notaries thus have an unbroken provenance stretching back to the papal notaries of the Middle Ages.
This power in England is vested in the Court of Faculties presided over by the Master of the Faculties in the name of the Archbishop[13] in the same manner as the Consistory Courts are presided over by the Chancellor in the name of the bishop of the diocese to which the Consistory court belongs.
Thus though English notaries were appointed by the most senior ecclesiastical authority by virtue of an Act of Parliament which has never been repealed, they have also faced the gravest difficulty in having their work given the seal of approval by the judges of the Common Law courts who have over the centuries set their face against the recognition of notarial acts.
By the end of the 18th century, the only English courts to apply Roman Civil law and recognise the worth of notaries were the Ecclesiastical courts and the Admiralty Court. These church courts conducted a very wide range of business as they dealt with inter alia matrimonial disputes, probate and administration of estates, conveyancing and some aspects of libel. In addition the Court of Admiralty before which the members of Doctors '"Commons practised'[14] was the main mercantile court in the country and it too based its jurisprudence on the Civil Law. However by the end of the 19th century virtually all of the work of these courts had been absorbed into the new Supreme Court of Judicature created by the Judicature Acts of 1873/75 and allocated in the main to the Probate, Divorce and Admiralty Division of the High Court.
The end of 18th and the start of 19th centuries also saw the formation of the earliest firms and partnerships of solicitors, attorneys and proctors. To consolidate and enhance their new professional status, the solicitors sought regulation in the form of the Incorporated Law Society in 1884. They also sought to draw notaries under their control by seeking the merger of notaries with solicitors but a bill[15] promoting such a scheme was defeated in the Lords, thereby allowing notaries to retain their independent professional status though generally outside London, notaries were drawn from the ranks of solicitors. English notaries thus still retain their right to practise in most aspects of the law save that of a contentious nature, as preserved by s.1 of the Public Notaries Act 1801 and confirmed by the Legal Services Act 2007.
With the massive growth of commercial activity in this country following the Industrial Revolution, there arose a dire need for the appointment of more notaries outside the London three mile limit of the monopoly of the Scriveners Company.
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The Public Notaries Acts of 1801,1833 and 1843 provided for basically three grades of notaries; the Scrivener notaries of the City of London governed by the Scriveners Company, district notaries who had a restricted territorial limit within which to practice and who served the commercial needs of provincial towns and general notaries who enjoyed an unrestricted jurisdiction outside the three mile exclusive Scrivener jurisdiction in London
The district notaries were always solicitors whose jurisdiction was confined to a small district usually expressed as " ...within three miles of St Mary's parish church". They were not required to serve a period of apprenticeship. This lack of a requirement to be trained in notarial practice might have given ammunition to those seeking to absorb all notaries into the solicitors profession.
In contrast the general notary had to enter into an apprenticeship which was initially seven years, later reduced to five years. There was no requirement to be a solicitor nor to take any examination in law nor in notarial practice, knowledge of which was expected to be gained by serving under the notary to whom he was apprenticed.
The office of District Notary was abolished in 1990 and district notaries were absorbed into the ranks of general notaries.
Concern was expressed in the early 1980's that the profession of notaries ought to have a more formal structure of regulation and training. This concern coincided with the appointment of Sir John Owen, as Master of the Faculties in 1980, who was subsequently appointed a High Court judge in 1986, the first Master to hold such an appointment.
He embarked on a number of radical reforms of the Profession. In 1981 he created a Contingency Fund to which notaries were required to subscribe and introduced the first professional examination, initially confined in 1981 to conveyancing and probate. Later in 1983 land law, trusts and succession were added and in 1986 notarial practice included in the syllabus of the examinations.
Informal ad hoc instruction for those preparing to take these examinations was provided by a group of dedicated and enthusiastic notaries in their spare time. The examinations were set and marked by the Scriveners Company.
This informal approach had to change and in 1998 Cambridge University agreed to provide a Diploma course by means of 'on line' tuition and residential weekends over a period of two years. The first year was devoted to private international law and Roman and Civil Law with notarial practice being taught in the the second year. This course is now provided by University College London.
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In 1998, a Qualifications Board was set up by the Master[16] to examine all applications to take the university diploma course and to grant dispensations to those who by reason of their existing professional qualifications had already possessed a thorough grounding in the core subjects of public law, property law, contract, EU law, trusts and equity. However as conveyancing, business law and probate and administration did not form part of the examined subjects of most law degrees, candidates had to either demonstrate a thorough knowledge of these subjects or take a prescribed course to make good any deficiencies before commencing the Diploma course.
On completion of the Diploma course, the candidate can apply to the Master for the grant of a Faculty. Though the Access to Justice Act 1999 removed the exclusive jurisdiction of the Scrivener notaries, the Scriveners Company continues to set examinations in foreign languages and law for notaries who having been granted a faculty, wish to practise as Scrivener notaries. There are presently about 30 Scrivener notaries practising in the City with about another 850 notaries covering the whole of England and Wales.
The Legal Services Act 2007 preserves the jurisdiction of the Court of Faculties headed by the Master, over notaries and confirms the Master of the Faculties to act as the regulator of notaries and responsible for the education and training of both prospective and practising notaries. All English notaries must nowadays undertake annual Continuing Professional Education.
The English notary can now claim to be as well trained as notaries in other jurisdictions in Europe. In England and Wales they are also the oldest legal profession in terms of regulation and training. The English Notary can perform all non-contentious work normally associated with solicitors and in addition his notarial acts deal with such matters amongst others of personal and corporate powers of attorney, execution of foreign wills, certification of parental rights and responsibilities, certificates of inheritance and confirmation of shipping documents.
Brooke's Notary describes a notary as belonging to a separate profession whose involvement in legal affairs is restricted to non-contentious work and whose official acts which are described as "notarial acts", are executed under his Official Seal and signature.
Brooke's Notary defines a notarial act as being "the act of a notary public authenticated by his signature and official seal certifying the due execution in his presence of a deed, contract, or other writing, or verifying some act or thing done in his presence. Thus any certificate, attestation, note,
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entry, endorsement or instrument made or signed and sealed by a notary public in execution of the duties of his office is a notarial act.[17]
The feature of the Notarial profession which perhaps sets the notary apart from his colleagues in the other two legal professions in England and Wales, is the making of the Notarial Act in Public Form. In the making of the Notarial Act in Public Form the notary is the author of the entire document and creates a juridical act though the description "narrator" might be more appropriate.
Whereas in its private form a notarial act is one where the notary authenticates a document by appending his seal and signature; in its the public form the notary gives a narrative account identifying the parties appearing before him, records the matters which they wish to have recorded and confirms that they have been made aware of the contents of the act requested of him and thereafter signs and seals the document.
Properly executed, the Notarial Act is set apart from many other legal processes by the certainty that it creates.
The essential parts of the Act were defined by J. Charlesworth as follows[18]:
"first, the title, the date of execution, the names of the notary, the parties and the witnesses, and a statement of the fact that the parties appearing before the notary and their reason for doing so; second the document or transaction which is the subject of the act; third a statement to the effect that the instrument was read to the parties and approved by them; fourth, the signatures of the parties and the witnesses and fifth, the signature and seal of the notary himself"
In the making of the Act the notary perfects the declarations that the parties have made to him in his instrument.
The Act is retained by the Notary and is not the property of the parties. It is perhaps the oldest feature of the profession. The officials in imperial Rome, the tabellio and notarius kept a note of their acts in a separate document called the abreviatura .
In the School of Law at Bologna during the 12th and 13th centuries, the practices of notaries were developed and included recording the abreviatura in a book called notularium. From this note book or record, the notary drew his public instrument until this note became in effect the authentic instrument. In the realm of the Latin notary, it is this document which is retained in the notary's protocol of which the parties receive only authentic copies. It was Rolandino Passeggeri of Bologna who in 13th century wrote the great text book Summa TotiusArds Notariae which is on a par for notaries with the treatise called Glanvill probably written about 1187-1189 by the Justiciar, Sir Ranulf de Glanvill, one of the earliest text books available to English Common Law lawyers.
Our Continental colleagues have often failed to give English notaries and their Notarial Acts the recognition that as members of the English legal fraternity, the English notary deserves. It is
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still asserted by some civil law notaries that English notaries do not prepare notarial acts but rather confine their work to the witnessing of signatures. Nothing could be further from the truth[19].
An example of a notarial act in public form would be an occasion upon which the notary witnesses a contract between two limited companies and made by two of their executive officers. The notary's task would be to prepare a narrative account of what transpired between the parties before him. The notary in the course of preparing the Instrument would:
i. Confirm the identity of the persons appearing before him usually by enquiry and inspecting their passports and other personal documentation.
ii. Confirm that they are the officers of their respective companies.
iii. Confirm the continued valid existence of the respective companies, that they appear to be in good standing and there is nothing in their "statutes" preventing them from concluding the contract.
iv. Check that the officers have been given by their Boards the necessary authority to conclude this particular contract.
v. Check that the contract complied with the relevant law of the jurisdiction within which it was made in relation to its manner of execution.
vi. Confirm with the officers of the companies that they understood in general terms the contract and the liabilities that they and their companies were committed to by the contract
vii. Witness the signatures of the officers to the Instrument and that the signatures are authentic and are binding on the company.
viii. Conclude the Instrument with his eschatocol that all the requirements of the applicable law governing the formal parts of the instrument have been complied with by all concerned.
ix. Sign and affix his seal to the instrument.
x. Place the instrument in his protocol.
If the English notary has fulfilled all that is set out above then such an Act in Public Form must rank with similar documents prepared by a civil law notary.
Brooke's Notary in Chapter 5 under the heading of "Formalities of a Notarial Act" speaks of the act as being the act of a notary public authenticated by his signature and official seal certifying the due execution in his presence of a contract done in his presence. The passage at 5-01 concludes with the statement that:
"In those countries in which notarial acts have full and automatic recognition, a notarial act is probative of whatever is certified by the notary as having been done or said in his presence."
To what purpose the instrument is put does not diminish the probative nature nor the truth of the facts stated therein by the notary and should be acted upon in the courts without further proof being required of the same.
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The issue has arisen, encouraged in part by the Summary (2008) by the Council of the Notariats of the European Union, as to the meaning of the term "authentic instrument" and its relationship with the "notarial act in public form".
The first point that the Summary makes is that the UK's accession to the 1968 Brussels Convention introduced into our legal vocabulary the term "authentic instrument". Until the Civil Jurisdiction and Judgments Act 1982, there was no legal definition of this term. The Convention and Regulation 44/2001 provided for national legislatures to determine their own precise meaning of the term.
At present a German authentic instrument is not identical to that of a French or Romanian authentic instrument. The parties to the 1968 Brussels Convention and the 1988 Lugano Convention were agreeing to the reciprocity in enforcement of their own pre-existing national authentic instruments.
Thus at the time of the Civil Jurisdiction and Judgments Act 1982, there was no English notarial act which had these elements of probative status and executory force which are the hallmarks of the Civil Law authentic instrument. However these qualities or status is not to be found in all the authentic acts of notaries in all Civil Law jurisdictions; it varies from one country to another - a feature which some advocates of the Civil Law authentic instrument conveniently ignore.
Dr O'Connor in The Irish Notary expresses the notarial act in these terms:
"In a strict legal sense, authentication is the formal process by which a document, statement or happening is related back to its author or originator and verified as true, accurate and complete. Such verification is performed by a person authorised or empowered in law to do so. A notary public is a person so authorised and his authentication constitutes a notarial act.
What is said in the current edition of Brooke's Notary on this subject is:
"Authentic instruments usually take the form of agreements containing obligations which are drawn up by the parties before a notary public. They exist in most European legal systems.... and.... are enforceable without having to be drawn up asjudgments" The editor is of the view that authentic instruments as such do not exist in the domestic law of England and Wales.
Within our own jurisdiction we are bound to observe the Brussels Convention and the European Enforcement Order which is resorted to more frequently as of late especially by jurisdictions such as France, Spain and Portugal where English people have purchased large numbers of properties.
The Regulations under the Convention refers to authentic instruments as:
"A document which has been formally drawn up or registered as an authentic instrument and is enforceable in one Contracting State shall in another Contracting State have an order for its enforcement issued there..."
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Thus it is argued that it is this element of enforceability that gives the authentic act its special status. European Enforcement Orders coming before the English courts from authorities in the rest of Europe are in effect "rubber stamped" and sometimes served on persons who had no idea as to the nature of the document that they signed before a foreign notary.
It is noteworthy that in Scotland the explanatory note to Rule 5 of the Act of Sederunt (Sheriff Court European Enforcement Order Rules) 2005 states:
"Rule 5 provides a procedure for certification of an authentic instrument as a European Enforcement Order. An example would be a deed registered for preservation and execution in the books of a sheriff court."
It also appears that a notarial protest by a Scottish notary of a dishonoured bill of exchange or promissory note (but not a dishonoured cheque) maybe registered in a public register known as the Books of Council and Session and as such is termed a decree of registration and may be executed without further court intervention.[20]
It appears that in Scotland that it is possible to register any obligatory document including leases, contracts or those containing a specific obligation in the Books of Council and Session or in the Sheriff Court books. The document does not need to be executed by or before a notary. The effect of the registration for execution is equivalent to a court degree being granted against the debtor. Summary diligence (execution/enforcement) can be commenced upon such a decree being extracted from the Register.
This practice would appear to be far more comprehensive than perhaps the use of authentic instruments on the Continent. However it may not be resorted to very frequently and the parties must have consented to the documents relied on being lodged in court.
Similar procedures were introduced in England by Edward I in 1283, 1285 and 1311[21] whereby merchants could lodge contractual documents with certain city authorities and in default of payment, seek enforcement by the local sheriffs. It was not a practice which commended itself to the sheriffs who were obliged to enforce contractual debt for as little as a penny. It fell into disuse.
Perhaps the catalyst which enabled the English notary to achieve a partial breach of the walls of the resistance of both the Common Law and the Continental Civil Law courts, was in part
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the introduction of the European Council Regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters[22].
Article 57 of Chapter IV of the Regulation deals with Authentic Instruments in these terms:
A document which has been formally drawn up or registered as an authentic instrument and is enforceable in one Member State shall, in another Member State, be declared enforceable there, on application made in accordance with the procedures provided for in Articles 38, et seq. The court with which an appeal is lodged under Article 43 or Article 44 shall refuse or revoke a declaration of enforceability only if enforcement of the instrument is manifestly contrary to public policy in the Member State addressed. The instrument produced must satisfy the conditions necessary to establish its authenticity in the Member State of origin.
Herein lay the rub. English Notarial Acts had not always been recognized in the past as being either probative nor indeed enforceable before English Courts. For an English Notarial Act to be recognized across European borders, it must first be recognized before English domestic courts in order to satisfy the provisions of Article 57.
The approach of the English Courts to notarial acts has been influenced by the Common Law requirement for the giving of oral evidence in open court - the principle of Orality. The assertion of fact other than by a witness in the proceedings was generally inadmissible as it offended the Rule against Hearsay. However in most European countries with Civil Law jurisdictions, the notarial act represents documentary evidence par excellence.
Insistence on Orality has much diminished in English civil courts today and the Rule against hearsay has virtually disappeared. Indeed as a consequence of the introduction of the Civil Procedure Rules 1998, especially Rule 1. 4. (2) (j), the courts are mandated to deal with cases without the parties needing to attend at court wherever possible.
The approach of the Common Law in 19th century was well illustrated in Chesmer v. Noyes"[23]. when Lord Ellenborough held that the courts would acknowledge and accept a notarial act from a foreign notary but not one made by an English notary which had to be proved in the same manner as any other document before the court.
In 1883, Rules were made relating to the admission of documents prepared in "foreign countries" but these Rules distinguished such documents from those made before notaries in parts of the British Empire. Hence a great many notarial acts made by British notaries throughout the world were excluded from the provisions of the Rules.
The basic Common Law position was generally considered by textbook writers to be that stated by Lord Tenterden in R. v. Scriveners' Company[24]": "... many documents pass before notaries under their notarial seal which gives effect to them and renders them evidence in foreign countries,
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though certainly not in our courts of common law." This case was relied upon by the Lord Chancellor, Lord Irvine, when Masters Owen and Cameron sought to gain probative status for the Acts of English notaries in 1999 and 2002.
However this observation by the Lord Tenterden was at most obiter if not a mere gloss wholly unrelated to the issues in the case. The probative status of notarial acts before Common Law Courts was not under consideration; it was not in issue in the case and does not appear to have been argued before the court. In his judgment, Lord Tenterden said:
"A clerk who worked in a bank from 9am till 5pm, went to a notary to work after hours. At the notary's office, he undertook various clerical duties involving bills of exchange and drawing up protests. After seven years he claimed that he had been apprenticed to this notary and applied to the Scriveners' Company to be admitted as a notary. When this was challenged, the court found that he had never been working as a notary's apprentice for these seven years but was in fact simply a banker's clerk who was earning some extra money and it was very difficult to make out that this young man was so employed as to qualify himself as a notary especially as he was not doing the whole work of a notary." It was at this point in his judgment that Lord Tenterden sought to list some of the other tasks undertaken by notaries and made the observation about some notarial documents being for use in foreign courts but not being recognised before English courts.
But there were some judges who supported the view that notarial acts ought to be recognised for their probative value as reflected by the ruling in an action in 1701 on a bill of exchange when Chief Justice Holt said that it was not necessary to prove an instrument attested by a notary public "for that" he said "would destroy commerce and public transactions of this nature ... A protest attested by a notary proves itself".[25]
In the Irish case of Furnell v. Stackpole[26], Dr Radcliff, sitting in the Irish Court of Prerogative in Dublin, which concerned the granting of probate and making provisions under a will, explained the nature of a notarial act in these terms:
"What are these instruments? They are acknowledgements before a notary, as a public officer, and acts made by him are public authentic instruments. He is the proper and only person to attest them; he drew them up, so that no proof is necessary to prove the act but his attestation and the confidence the law places on such an officer universally acknowledged and credited by the law of nations. They are like the protests of ships or bills of exchange, which the general law entrusts to a notary to make always at the request of parties, and which every notary swears in all cases to make faithfully and without fraud, and not against the will of any party; he is the witness".
In Hutcheon v. Mannington, Lord Eldon, Lord Chancellor, said "A notary has credit everywhere by the law of nations."[27]
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The faculty which a notary receives is granted pursuant to the Ecclesiastical Licences Act 1533, which states that "hereby decreeing that full faith ought to be given as well in judgment as there out to the instruments to be from time to time made by you".
Whilst English notaries did not seek to arrogate to their acts the status of judgments or executory force, they were increasingly conscious that the lack of recognition of the probative value of their acts placed them at a disadvantage vis-a-vis their colleagues in Europe and elsewhere, particularly in view of the fact that instruments issued by European notaries may now be enforced in the United Kingdom in much the same manner as in their country of origin.
English notaries had for a number of years sought to obtain through Parliamentary legislation, a provision broadly to the effect that, subject to suitable safeguards in cases where forgery or fraud is alleged, all notarial acts or instruments should be received in all courts of law as proof of the statements of facts made therein by the notary. This was achieved when in the late 1990's the revision of our civil procedural rules in the form of the Civil Procedure Rules 1998, allowed major reforms of our civil procedure to be effected by means of the use of Statutory Instruments rather than by time consuming primary legislation.
It so happened that as the Senior Master of the Supreme Court, I had a privileged position in relationship to drafting of the new Civil Procedure Rules.
It was decided by the Master, Dr Cameron, that we should try to gain recognition of the probative force of a notarial act under Part 32 of the Civil Procedure Rules relating to "Evidence". Together with Nigel Ready, a leading Scrivener notary and editor of Brooke's Notary, we drafted a submission to the Rules Committee which they were kind enough to consider together with my submissions to the Rules Committee.
We had drafted a new Rule which to our surprise in view of the earlier correspondence with the Lord Chancellor who had rejected the submissions of Masters Owen and Cameron, our request was not opposed by the Government lawyers who advised the Committee and the result was that in 2005, the following new Rule was added to the Civil Procedure Rules 1998:
"A Notarial Act or instrument may be received in evidence without further proof as duly authenticated in accordance with the requirements of law unless the contrary is proved?"[28]
This amendment was placed before Parliament as a new Statutory Instrument and became law on 1st October 2005.
Rule 32.20 of CPR1998[29] does contain the word "may" but an English judge could not challenge a notarial act nowadays other than on a proper juridical basis namely for example that the act was false or fraudulent or wholly contrary to public policy. There is no general discretion left to the English judge. Indeed as I understand it, the Civil Law judge would be in the same position if an authentic instrument was challenged on a similar basis.
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In France a statement made by a notaire of what is said or done before him in his official capacity is presumed to be true until disproved by a formal procedure known as "inscription de faux".
This was a remarkable volte-face by the Common Law after centuries of denying such recognition to the acts of English Notaries. It brought us more into line with the practices of our colleagues on the Continent. English Notaries could now claim a greater degree of recognition and status for their acts which had been so long denied.
But there is no doubt that it has done much to enhance our status abroad. As our dealings with Europe become far greater over the coming decades and the recognition of cross border judgments becomes commonplace, it is important that our notaries can take advantage of this recognition of the probative status of our notarial acts in our own domestic courts and rely on the same to gain the recognition they deserve abroad.
The Editorial comment to Rule 32.20 at page 993 of Vol 1, Civil Procedure 2012 - "The White Book" - probably sums up best this novel situation:
"English civil procedure has to interact with procedures used by foreign legal systems, where the common law does not prevail and where attitudes towards proof of the authenticity of documents differ. The giving effect by amendment to CPR Pt 74 of Council Regulation (EC) 805/2004, creating a European Enforcement Order for uncontested claims is a recent example. The rebuttable presumption relating to notarial acts and instruments generally, introduced by this rule facilitates proof in various procedural contexts, particularly those with a foreign dimension."
For the past 150 years we have had a peculiar situation in this country where the Act of a foreign notary has been recognized by our Common Law courts but the probative status of those of our own notaries were not always recognized. Though we regard this situation as having been cured by Rule 32.20, there are still some bodies on the Continent which seek to deny that these changes in the Rules have given our Acts the authenticity that they regard as necessary.
Some Continental Notaries appear to have founded their objections on four grounds:
i. The lack of a formal education in notarial matters for our Notaries - but this has now been remedied by the post-graduate Diploma course which all lawyers seeking to become notaries must now undertake before they may apply for their Faculty to practice as a notary. Indeed the English notary is now probably as well trained and educated as any Civil Law notary.
ii. The lack of executory force for our Acts. This an obvious and important difference which we need to address yet our Acts have far more in common with the Civil Law Acts than there
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are differences. Indeed the treatment and recognition of Authentic Instruments is by no means consistent throughout the EU.
iii. Some Continental notaries try to suggest that only our Scriveners Notaries are true notaries and that non-Scrivener Notaries are there just to witness signatures. All our notaries are trained to the same high standards in their specialist work as notaries be they general or Scrivener notaries before they are given their Faculty by the Master.
iv. The fact that many EU states regulate their notaries as if they are public officials is held against us but our notaries have independent professional status under a regulator approved by Parliament.
The European Union had proposed the passing of legislation to provide a uniform and European wide accepted form of authentic act which would be automatically enforceable in all Member States but a Green Paper on this subject has yet to materialize.[30]
English notaries generally have come a long way both in their professional training and the recognition of the status of their acts and instruments by our national courts since the last century. They are now well organized, highly qualified and providing a much needed international service.
Their notarial acts in public form are prepared with the authority of a faculty provided by a public and national authority appointed by Parliament.
The national courts of England and Wales recognize without further proof the probative value of their instruments. Orality is no longer insisted upon in civil courts in England and the Rule against Hearsay has virtually disappeared.
Maybe not all English notaries fully understand the functions of notaries in civil law jurisdictions and equally civil law notaries often have a dismissive view of the functions of our notaries. There are some acts which our notaries do not perform because of the structure of our legal system. Yet many civil law notaries would struggle with the work which our notaries do on a daily basis. English notaries have to contend with multiple jurisdictions and myriad forms and formalities and the tasks of making Common Law principles comprehensible to civil law practitioners and judges and generally facilitating the smooth transaction of work in all parts of the world. There is an urgent need to achieve a greater degree of mutual understanding, a task in which I understand the Society of Scrivener Notaries and the Notaries Society has been earnestly engaged for some time.
The element of executory force before our domestic courts is of course missing from our notarial acts at the moment but it is evident that the government is seeking in many fields of our
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civil procedures and litigation to remove the need to force parties to engage in needless litigation in order to enforce their rights. I see no reason why the government would not be keen to encourage the registration of our notarial acts.
By an odd twist of history, English notaries receiving as they do their faculty from the office holder to whom that task was delegated by Pope Nicholas III in 1279, can claim as good a provenance as any civil law notary.
Professor Robert Turner. M.A. (Cantab), LLD, FICM
The Senior Master of the Supreme Court of England and Wales and the Queen's
Remembrancer 1996 - 2007 Bencher of the Honourable Society of Gray's Inn.
Member of the Master of the Faculties' Notarial Qualifications Board 1998-2012
June 2013
Copyright R.L.Turner 2013
I am indebted to the following for their advice, assistance and for permitting me to quote extensively from various of their publications.
Dr Sheila Cameron QC. Former Master of the Faculties.
Nigel Ready MA, author of Brooke's Notary 12th Edition and a Scrivener Notary of the City of London.
Dr Peter Smith LLB, PhD, FRHistS, of Lincoln's Inn, Barrister, chairman of the Qualification Board
Christopher Langdon, MA. Notary Public. Peter Lawson. Notary Public
Michael Lightowler, President of the Notaries Society. Iain Rogers, Scrivener Notary of the City of London
Andrew Johnson - The European Authentic Act. The Notary, Winter 2010/2011 Sweet Maxwell, publishers of Civil Procedure - The White Book.
Dr Rory O'Connor, Dean Emeritus of the Faculty of Irish Notaries and author of The Irish Notary.
Michael P. Clancy, director of Law Reform of the Law Society of Scotland. Stephen Borton, Chief Clerk of the Registry of the Archdiocese of Canterbury.■
NOTES
[1] This paper was written and presented to the first Conference of the World Organisation of Notaries held between 14th - 16th June 2013 in Dun Laoghaire, Ireland.
[2] References to English notaries are intended throughout to be inclusive of all Welsh notaries but do not include notaries practising in the Channel Islands nor in the Isle of Man.
[3] Matthew Paris in his Historia Anglorum (1240) drew on the last few pages of the manuscript now held in the British Library, a route map of a journey from London to Rome in much the same format as that adopted by John Speed (1552 - 1629), thus assisting the regular travellers to Rome.
[4] The use of juries had been a feature of many Germanic societies in northern Europe but was later replaced by the use of judges to investigate the facts as well as to apply the law which is now a feature in so many Civil Law jurisdictions
[5] However it is interesting to note the increased reliance on written evidence by the recent civil procedure reforms, no doubt in the interests of economy!
[6] The development of Common Law in preference to Civil Law is comprehensively dealt with by R.C.Van Caenegem in "The birth of the English Common Law" 1988 Cambridge U.Press, a very readable account.
[7] One of the earliest depictions of heraldry is to be found in a seal of Gilbert de Clare, earl of Pembroke, 1141. Whereas most baronial seals were circular in form, those of bishops were lozenge in shape and the same practice exists to this day.
[8] Pollock & Maitland's History of the English Law at p.172
[9] This pope was found by Dante in the 8th circle of Hades upside down in a hole with flames burning the soles of his feet as punishment for being the worst offender of the sin of simony
[10] This is still an part of the Queen's title and is found on our coinage as "Dei Gra Reg Fid Def" which translates as "By the Grace of God Queen, Defender of the Faith"
[11] An interesting survival of this court was demonstrated in 2010 when the High Sheriff of Gloucestershire presided in the shire court at Gloucester over the election of a new Verderer for the Forest of Dean by a show of hands of the freeholders of the entire country - or at least the three hundred who attended. A further such shire court met last year in the nave of the cathedral to elect another verderer. The elections were instigated by the issue of the Common Law Writ de Viridario eligendo.
[12] Oxford History of the Laws of England, 2003, Vol VI.
[13] The Archbishop of Canterbury is the most senior Officer of State taking precedence after the Royal Family and before the Lord Chancellor and the Prime Minister. He is a member of the Privy Council and sits as of right in the House of Lords.
[14] The College of Doctors of Law exercent in the Ecclesiastical and Admiralty Courts.
[15] Lord Selbourne, LC, in support of the bill argued that a profession ought not to be seen to be under an ecclesiastical officer and governed by a livery company - the Scriveners Company.
[16] The Master is also responsible for the granting of faculties to notaries in the Channel Islands, Gibraltar, Queensland, New Zealand and some countries in the Pacific.
[17] Brooke's Notary 12th Edition at p.65.
[18] A Treatise on the Office and Practice of a Notary in England - 9th Ed. 1939
[19] It is a curious feature of the French version of para 2.1 of the Executive Summary of the Comparative Study 2008 produced by the Council of the Notariats of the European Union that emphasis is placed in this regard on the "general notary" by using English for this term.
[20] Bills of Exchange Act 1681
[21] Statutes of Action Burnell 1283, Statute of Merchants 1285 and The New Ordinances 1311.
[22] Reg. 44/2001 of 22 December 2000
[23] (1815) 4 Camp.129
[24] (1830) 10 B C. 511 at 518-9
[25] 12 Mod R 345
[26] (1831) Milw.281.
[27] 6 Ves 823.
[28] Rule 32.20 of the Civil Procedure Rules 1998.
[29] See below in section 6.
[30] See articles in "The Notary" of Winter 2010/11 and Summer 2012 by Andrew Johnson and Michael Lightowler.
Lábjegyzetek:
[1] Professor Robert Turner. M.A. (Cantab), LLD, FICM The Senior Master of the Supreme Court of England and Wales and the Queen's Remembrancer 1996 - 2007 Bencher of the Honourable Society of Gray's Inn. Member of the Master of the Faculties' Notarial Qualifications Board 1998-2012
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