The Notary Public: A 5,000 Year Old Story!

The Notary Public: A 5,000 Year Old Story!

The Notary Public: A 5,000 Year Old Story! 800 558 Alfred Ip
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Thousands of years have passed since the Egypt and Ancient Rome flourished, but remnants of these great civilisations still provide societal pillars today.

Whether it is the beautiful marble sculptures in monument to great human achievements, the innovation and advancement of transport through expansive road building, the progression in architecture through intricate designs along with the creation of curved roofs and large-scale arches, the foundations of literature and language through spoken and written Latin or the court systems used in law.

Notaries Public may be known to you and you will likely have a vague understanding of the notarisation processes and what they are used for (if you don’t please read our recent article “The Role of a Notary Public in Hong Kong” for more information on how they operate within Hong Kong!). However, what you may not know is that their origins can be traced right back to Egypt and Ancient Rome.

The role of a Scriba during ancient times

The earliest evidence of Notaries Public were the scribes used in Egypt, dating back to 2750 BC. These chroniclers were entrusted with handling official communications, including letters, proclamations or tax documents which must go through their hands to be effective. Many more routes of notarisation having become a profession can be found in Ancient Rome, also connected to the form of scribes (or “scribae”). They were originally copiers or transcribers, but as the importance of accurate accounts and technical document knowledge grew, scribes were increasingly considered as professionals who were crucial for the documentation of public and private affairs.

Being a scribe eventually became a recognised profession. Generally, there were two types of scribes, those who were involved in public affairs (i.e. recording public proceedings, transcribing state papers, suppling magistrates with legal forms) and those who worked on private concerns (i.e. drafting Wills, deeds and conveyances). The public scribes were the highest in rank of the four prestigious occupational grades (“decuriae“) among the apparitores, the attendants of the magistrates who were paid from the state treasury.

As the profession developed, some scribes began to use a form of shorthand and substituted marks for words. This type of shorthand was termed “notae” and a writer who used such method was called a “notarius”. Thus, Roman Notaries were created, although, unlike today, their primary role was to record judicial proceedings and assist in the administration of justice. Private matters were still left to professional scribes (or “tabelliones”) who held no public office.

The Fall of the Western Roman Empire and The Dark Ages

Although the Roman Empire fell, many practices they had implemented were retained by the invaders. As the years passed distinctions between different types of Notaries Public were developed. Such as Royal Notaries who were delegated specific bishops/abbots/counts and Palatine Notaries who were attached to the Court of a Palatine Count.

Towards the middle of the tenth century the distinctions between these types of Notaries gradually began to disappear, until a uniform office of notary was established.

Medieval period

It was not until the start of the Dark Ages and, thereafter, changes witnessed in the 12th Century, that Notaries Public began to become a cornerstone of civil law.

Notaries Public continued to be used throughout the medieval period and, within the Holy Roman Empire, were appointed by the Emperor or local feudal prince. These Notaries Public had no territorial restrictions and were generally recognised throughout the territories of the empire, in papal territories, plus certain disputed territories or territories not formally within the empire, for example parts of Italy.

The School of Bologna began to classify the acts of Notaries Public further and laid down set formalities which they had to abide by for the documents to be correctly formed/ authenticated. It was a result of the studies at the School of Bologna that the concept of a Notary Public as a qualified legal professional arose.

Throughout this period, it remained that notarial documents prepared by Notaries Public were not authenticated until they obtained the seal of the Court that the Notary Public, who prepared the deed, was registered had been affixed. In France, Louis XIV scrapped the need for seals having to be physically brought to the courts for approval and final authentication, by granting each Notary Public a seal with the royal arms. These seals were enough to authenticate the documents Notaries Public produced.

Developments in Civil Law

Across most of continental Europe the civil law system was used (and is still used today). As the years passed, the significance of Notaries Public in civil law jurisdictions increasingly grew. Civil law held (and still holds) importance to written evidence and the reliance of what was written was crucial.

To ensure the written evidence could be relied upon, deeds/legal documents needed to become “public” documents by being entered into special public registers. The only way to get these documents into these public registers was to have them officially notarised by a Notary Public. These documents would only have legal reliability and certainty once they were made “public”.

Only skilled and qualified individuals could notarise these legal documents for public registers. Thus, the standing of a Notary Public in civil law systems became a carefully regulated specific legal role within itself. This remains the case today in most civil law jurisdictions, within continental Europe. Generally, the Notary Public: must have a law degree; is not allowed to simultaneously practice as a lawyer; and has to pass rigorous and competitive exams. The number of Notaries Public in some civil law jurisdictions, such as Italy, is also fixed by law.

Developments in Common Law

Unlike Italy and most of Europe, England and Wales developed its own form of legal system, different from the continental civil law system. This is known as common law, and while many similar concepts such as Notaries Public were adopted, they differed in their application.

Shortly before around 1280, foreign Notaries Public began arriving in England. After 1280 the concept of English Notaries Public began to be implemented. Originally the Archbishop of Canterbury appointed Notaries Public, mostly who were members of the clergy. As time passed the religious Notaries Public ceased to take part in business not relating to religion. This led to secular people becoming Notaries Public, so as to cover all private and business matters.

In 1533, the Ecclesiastical Licences Act 1533 (“ELA”) was brought into law. This act vested the appointment of Notaries Public with the King rather than the Pope (through the Archbishop of Canterbury). Thus, from 1533 onwards Notaries Public were appointed in England and Wales without any foreign intervention.

The situation now

The duty of Notaries Public has developed throughout the years and today, in common law jurisdictions, generally their main purpose is to administer oaths/affirmations and witness/authenticate the execution of documents.

Ever since the implementation of the ELA, in England and Wales, the Court of Faculties have appointed Notaries Public. The main importance attached to Notaries Public and the authentication of documents, relates to foreign matters (i.e. if a legal document needs to be recognised abroad). As solicitors in England and Wales are all also commissioners for oaths, they all already have the power to witness routine declarations and this is not a power reserved to Notaries Public.

The Hong Kong Legal system is a common law jurisdiction and generally follows a similar approach when it comes to Notaries Public.

As touched upon, the development of Notaries Public has differed according to jurisdiction. The civil law systems in continental Europe and the Notaries Public duties extend beyond those of the duties expected of them in the common law system.

Conclusion

The original role of Notaries Public was that of official scribes who documented public and private affairs. As the development and importance of official documentations grew the more the role and procedures of these scribes had to be considered. As regions and territories were overthrown and changed, so were the duties and powers of the Notaries Public. The School of Bologna first laid down the specific formalities of Notaries Public and recognised them as legal professionals. The formally recognised role of Notaries Public and their ability to authenticate documents themselves became internationally recognised.

The foundations of a Notary Public being a legal professional who validates documents with their stamp or seal remains generally uniform. However, the formalities relating to the notarial practice has stemmed different branches. Although the concept of Notaries Public can be traced back to the same source, today the role of Notaries takes different forms depending on what jurisdiction you are in.

 

At Hugill & Ip we frequently notarise documents. If you need a further understanding of the subject, or want to enquire about getting a document notarised, please get in contact with us. For a full list of our notarial services please click here.

This article is for information purposes only. Its contents do not constitute legal advice and readers should not regard this article as a substitute for detailed advice in individual instances.

Alfred Ip

Alfred Ip

Alfred assists high net-worth individuals (HNWIs) in handling their wealth-related issues, such as contentious and non-contentious trust and probate, mental capacity, family office, amongst other wealth management matters. He is also a leading Dispute Resolution lawyer with over 20 years of experience in Hong Kong. Moreover, Alfred helps clients with issues regarding Family Law.

All articles by : Alfred Ip
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