« PreviousContinue »
intelligent notaries, and perhaps by bankers or merchants, is too frequently sought for in the works, often very defective, of foreign authors: a circumstance which would excite surprise, if it were not for the fact, that there is not any treatise now known and read, if such ever existed, written exclusively upon the office and practice of an English notary, although one or two authors, occasionally cited, such as Beawes, as long ago as 1750, and Montefiore, in 1801, published works, in which the notarial practice and precedents were alluded to, or introduced to a certain extent, but merely as blended with other subjects.
“The usages and practice of the notaries of England may, in some measure, be considered as traditional, because they are not defined by published rules of the court of faculties, or by statute; but that is only true to a certain extent, for they are not only transmitted by oral communication from notary to apprentice, and from senior to junior notary, but the general notarial register books, the protest and noting books, which are in general preserved with care, and often handed down from one generation of notaries to another, contain valuable information, respecting the forms used in times past, and the practice of those, who have since been removed from active pursuits, or from existence, by time or death; and which may possibly be one principal cause of the uniformity in the practice of the notaries, which is in general so observable throughout England.”
The work before us, as is indicated by its title, is confined to that part of the notarial functions, which relates to mercantile instruments, and, of course, is not a complete treatise on the office of notary; though, under the laws of England, that portion is by far the most important. We shall embrace the opportunity afforded us by Mr. Brooke's treatise, to lay before our readers some account of the office and duty of the legal functionary denominated a notary public; and, for this purpose, we shall take the liberty of reviewers, and make use of his work, and even his language, as freely as if we owned the copyright.
Notaries appear to have existed as public officers, from a period of remote antiquity, and to have been anciently scribes, who took notes or minutes, and made drafts of writings and other instruments, public and private. Notaries, and also other officers whose duties were of a nature somewhat similar, and who were called Tabelliones, were employed during the period of the Roman empire. The difference between the functions of the two classes of officers seems to have been, that the Notarii procured the information and materials, and drew up rough drafts or notes of the writings or instruments, which were then transcribed and authenticated by the Tabelliones. Both of these appellations were used during the middle ages; but it does not appear very clearly whether the duties of the two officers were then kept distinct, or whether they were blended together; and, in comparatively modern times, the terms notary and tabellion were applied without distinction, to the same officer; but the latter, at present, is almost wholly gone out of use. As early as the year 1237, notaries were officers known in some parts of England, though not in all; but tabellions did not then exist, or were very rare. A century later, however (1347), notaries existed and were commonly employed; being more than once named in the petition of the commons, in the twenty-first year of Edward Third. The law books give to a notary several names or appellations, as Actuarius, Registrarius, Scrinarius, and the like, all which are used to signify one and the same person. But in England, the word registrarius is confined to the officer of some court, the records and archives of which are in his custody. In England, a notary is a public officer of the civil and canon law, who derives his faculty or authority to practise from the court of faculties of the archbishop of Canterbury, in London, the chief officer of which is the master of the faculties, to whom applications are made for the admission and removal (under any special circumstances) of notaries. Lord Coke, in the fourth part of his Institutes, says, that the court of faculties is “a court although it holdeth no plea of controversy. It belongeth to the archbishop, and his office is called magister ad facultates.” Amongst legal officers, a notary takes precedence after a solicitor or an attorney; but, it does not appear, that a notary was ever privileged from arrest on mesne process; and, unless admitted as an attorney or solicitor, he cannot practise in any of the courts of law or equity; though, if in other respects competent by legal knowledge and experience, he may draw and prepare deeds of conveyance. In most other countries of Europe, and also in England notaries have been frequently employed, from a remote period, in preparing wills and codicils; but their chief business in England consists in noting and protesting bills of exchange, preparing acts of honor, authenticating and certifying examined copies of documents, and preparing and attesting various instruments going abroad, and granting and solemnizing all other notarial acts. The expression, notarial act, is one which has a technical meaning, and it seems generally considered to signify the act of authenticating or certifying some document or matter by a written instrument, under the signature and official seal of a notary, or of authenticating or certifying as a notary some fact or circumstance, by a written instrument, under his signature only; and the doing of any such act by an unqualified person, in any place where there is a practising notary, is prohibited by statute, under a penalty of fifty pounds. The English notaries, in general, appear to have always considered themselves entitled to administer oaths, affidavits, and affirmations, as within their functions; though, at one time, a different opinion seems to have prevailed amongst the London notaries. Perhaps their doubt arose from not considering that affidavits sworn before a notary are not intended to be used for the purpose of commencing or forwarding any suit or legal proceedings, in any English court of common law or equity, but to be used in foreign countries; a notary being, to a certain extent, not merely considered as an officer of the country where he is admitted, but as an accredited officer in other countries. If these doubts ever had any foundation, it is now removed by the act for the abolition of unnecessary oaths, passed in 1835, respecting the matters or things adverted to in the act, both in England and her colonies, and in foreign countries. It should seem that a notary cannot be considered as a mere ministerial officer, obliged, whether he likes it or not, to execute his functions when called upon to do so; and, in fact, instances not unfrequently occur, in which notaries decline undertaking or performing various kinds of business; considering that they have the same discretion as attorneys, in acting, or refusing to act, for any person. If they had no such discretion, they might often innocently lend their aid to fraudulent or improper measures, or might suffer much inconvenience from applications at improper times or places. Notaries are entitled to sue at common law for their fees and charges, and there is no reason to doubt, that they have a general lien upon bills, notes, instruments, and documents, for the amount of their general account; except, perhaps, in the case of bills or notes received for noting or protest from a commission merchant or other agent, with notice that they belonged to a third party; in which case, it would probably be held, to prevent confusion and inconvenience, that the notary's lien was only a particular one, on account of the charges relating to those particular bills Of noteS. In ancient times, the importance attached to the attestation of a notary was so great, that one was considered sufficient for the exemplification of any act—“no matter requiring more than one notary to attest it;” and, according to the canon law, one notary was equal to the testimony of two witnesses, – the rule being, unus notarius aequipollet duobus testibus." The master of the faculties has the general superintendence and control of notaries in England; and, on complaint made to him, in a summary manner, and supported by affidavit or other proof, an offending notary may be struck off the roll, and disabled from practising. The offences punishable in this manner are stated by Mr. Brooke to be, – permitting his name to be used by an unqualified person, — practising out of his district, — deceit or imposition in obtaining his faculty, - or any improper or disgraceful conduct in his practice. Wilfully certifying to any act as done on one day, when the notary knows that it occurred on another, and ante-dating any instrument in order to deceive, are considered to be offences of the last class; but, to the credit of the notaries, it is said, that instances of misconduct or of complaints very rarely occur; a strong proof, says Mr. Brooke, of the honor, integrity, and respectability of the general body of the notaries of England.” In order to become authorized to exercise the function of a notary public in England, a previous service of seven years, as a clerk or apprentice to a notary, is requisite. Ar
* This rule seems to be alluded to by Massinger, where he makes sir Giles Overreach say: “Besides, I know thou art A public notary, and such stand in law For a dozen witnesses.” * The French notaries, as a body, have not always been so respectable, if we may believe Boursault: “Il n'est rien de plus beau qu'n Notaire honnète homme, Mais dans ce Corps on a vå de tout tems Se glisser des fripons parmis d'honnètes gens.”—Comedie d'Esope.