An Interesting History
Historically, the office of a notary public had its origins in the civil institutions of ancient Rome. With a long and distinguished history, the office appears to have begun with public officials, called scribae or scribes some of whom at first copied or transcribed public proceedings, state papers, legal forms, judgements, and decrees. Others were engaged chiefly in matters of private concerns such as drafting dees, wills, conveyances, and the like.
The last century of the Roman Republic saw a new system of shorthanded invented called notae tironianae which took its name from Cicero’s secretary, M Tullius, and a writer who adopted the new method was called notarius.
Surviving the collapse of the Western Empire in the 5th century Common Era , the notarius or notary was attached to both courts of law and bishops, known as royal notaries and palatine notaries, and in the 11th century the office of the notary assumed a uniformed character.
The right to appoint notaries was therefore both the right of emperors and the pope, but it was not until the end of the 11th century that the papal right extended beyond papal states. When the civil law ( at the time chiefly western Europe) experienced a renaissance in medieval Italy from the 12th century onwards, the notary became established as a central institution of that law reaching its apogee in the Italian city of Bologna. Known as civil-law notaries or Latin notaries their role is similar, but they take on a wider role more akin to a NZ lawyer today but without an advocacy role.
The Development of the Common Law Notary
England developed its separate common law free from most of the influences of Roman law, and notaries were not introduced into England until later in the 13th and 14th centuries. At first notaries in England were appointed by papal authority until 1279 when the Pope appointed the Archbishop of Canterbury to appoint notaries. Initially many notaries were members of the clergy but over time lay people began to assume the official character and functions of a modern common law notary.
The Reformation brought no material change to the position and functions of notaries in England but in 1533 the Ecclesiastical Licences Act of that year terminated the power of the Pope to appoint notaries and vested the power in the King. The King then transferred the power to the now protestant Archbishop of Canterbury who, in turn, assigned it to the Court of the Faculties and the Master of Faculties, in whose hands it remains to this day for all common law notaries chiefly in what were the countries comprising the British Empire and the British Isles.
The Modern-Day Notary in New Zealand
A long and historically interesting evolution to the modern-day Notary Public who practice in New Zealand. Nowadays, in New Zealand the prime role of a Notary is to officially witness signatures on legal documents, collect sworn statements, administer declarations and oaths (sworn statements, e.g. affidavits) and certify the authenticity of legal documents and copies of origins they have sighted, for use overseas. Other functions include the preparation and witnessing of international contracts, deeds, wills, powers of attorney, ship’s protests, and consents for children to travel overseas with neither or one parent only.
A Notary uses an embossed tool, an individual official Seal, nowadays a lever press (rather than hot wax!), and a stamp recording their details. Usually, a red or gold self-adhesive foil is affixed to documents and permanently impressed with the Notary’s seal and signed and dated by the Notary, followed by details of the Notary, either to certify the document as a true copy or to verify their presence at the time the document was signed, and that the signatory’s identity was confirmed.
The appointment of a New Zealand Notary is for life. It is known as their Facility signed under seal by the Archbishop of Canterbury.
When Engaging a Notary Public
Formal identification , ideally by a current passport or photo driver’s licence, is essential, and sometimes proof of residential address, all in the interests of preventing identity theft, fraud, and forgery. A fee is payable at the time of the notary’s service. It depends chiefly on time, the number and complexity of documents presented or prepared, importance of the task, and urgency if required.
It is important to appreciate that Notaries deal exclusively with documents to be used overseas. For local documents, a Justice of the Peace or lawyer can assist. However, they cannot deal with documents for any foreign country as they have no international recognition under the Convention and no acceptance outside New Zealand.
Apostille and Legalisations
A second step is sometimes required by the country where the document is to be used. In countries that subscribe to the Hague Convention Abolishing the Requirement for Legalisation for Foreign Public Documents (1961) a further act of certification is necessary, namely an Apostille. This is provided by the Authentication Unit of the Department of Internal Affairs. For other countries not a party to the convention, an ‘authentication ‘or ‘legalisation ‘of the document must be issued by the Department of Internal Affairs that is then certified by the Department of Foreign Affairs here in New Zealand. Sometimes the Embassy, Consulate-General or High Commission of the country here in New Zealand is involved as well.
Complicated and quite formal? Yes, and for the reasons given above. However, it does avoid a trip to the country where the document is to be produced and relied on and does make a person’s international business or personally affairs and those of a company achievable in a dependable, prompt and moderately inexpensive manner and with certainty.
Compiled by David Stone,
Notary Public.