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CONTENTS:

Terms of Use

Home

Notarial Practice

Authentication of the Notarial Act

When a Notary will Decline to Intervene

Copies of Academic and Educational Credentials

Foreign Language Documents

International Wills

What is a Notary Public?

The Origin of The Notary's Seal

Fees

About Me


David Thomas Banner


3, Sussex Terrace, Hawthorn, South Australia 5062
Telephone: 0435 588 775
(International: + 61 435 588 775)
E-mail


WHAT IS A NOTARY PUBLIC?

A Notary of BolognaQuentin Matsys: Portrait of a Notary (early 16th Century)
The office of notary public had its origins in ancient Rome. Scribes were public officials whose duties included copying and transcribing official and private documents. They acquired technical knowledge and skills and became a profession in their own right. Over the centuries, the functions of the scribes became broader and more sophisticated, including that of notarius, a person who took statements in "shorthand" and transcribed them in the form of memoranda or minutes.

Many Roman institutions, including the office of notary, survived the fall of the Roman Empire. There are records of notaries attached to courts of conquered Roman provinces, the Franks and the courts of Charlemagne. By the beginning of the 10th century, notaries had become court registrars, recording judicial proceedings (one notable example of which, Helmasperger's Notarial Instrument of  6 November 1455, may be seen here) and drawing up private deeds. In medieval times, the emperors of Germany and the popes claimed the right to appoint notaries. Such appointments contained no territorial restrictions, i.e., notaries could practise their profession anywhere and their work was given universal recognition.

By the 12th century, notaries began to claim complete authenticity for their acts and instruments without the need for any imperial or judicial authentication. The ecclesiastical courts eventually accepted this claim and it became enshrined in canon (ecclesiastical) law. The result was that notaries eventually ceased to be dependent on judicial authorities and instruments bearing their personal signs or seals were given universal recognition.

Notaries were virtually unknown in England until the 13th century. In 1279, the Archbishop of Canterbury was authorised by the Pope to appoint notaries. Following the English Reformation, Parliament transferred this power to the Crown. A Court of Faculties was created, under the Archbishop of Canterbury, to appoint, and exercise disciplinary powers over, notaries. In 1801, Parliament passed the Public Notaries Act and thereafter the role of notaries was principally the preparation and authentication of instruments to be used abroad. The Court of Faculties still appoints notaries in Britain and in other parts of the Commonwealth where relevant local legislation does not exist.

In South Australia, the appointment and regulation of "public notaries" is governed by the Legal Practitioners Act. The Act provides that a person admitted as a public notary "has all the powers and authorities (including the power to take affidavits) exercisable by law or custom by public notaries". The Supreme Court has the power to admit a person to practise as a public notary upon the making of a formal application to a judge of the Court. The application must be supported by an affidavit or affidavits setting out, among other matters, the applicant's relevant qualifications and experience; the applicant's knowledge of the functions and duties of public notaries, including any relevant study undertaken by the applicant; the applicant's character; the purpose for which the applicant seeks to be admitted as a public notary and the manner in which the applicant, if admitted, proposes to practise. The applicant must advertise the application in the local press and must serve copies of the application and supporting documents on The Law Society of South Australia and the Notaries' Society of South Australia. If the application is successful, the notary must swear the following oath:

"I . . . do swear that I will not make or attest any act, contract or instrument in which I know there is violence or fraud; and in all things I will act uprightly and justly in the business of a public notary according to the best of my skill and ability. So help me God."
and sign the Roll of Notaries administered by the Court.

The powers and functions of a notary have never been defined by any statute in the common law world. The most common function nowadays is the verification of documents intended to take effect in foreign countries. This is usually done on the document itself or by a separate notarial certificate attached to the document and by the affixing of the notary's personal seal. Other common functions are the authentication of copies of original documents and the taking of affidavits (particularly those to be used in foreign countries).

Acknowledgement: Ready, Brooke's Notary (10th ed.), Stevens, 1988