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A notary public is an officer who can administer oaths and statutory declarations, witness and authenticate documents and perform certain other acts varying from jurisdiction to jurisdiction. Generally speaking, a notary public in the United States of America has powers that are far more limited than the role of a civil law notary in the rest of the world, with the exception of Louisiana. For the purposes of authentication, most countries require commercial or personal documents which originate from or are signed in another country to be notarized before they can be used or officially recorded or before they can have any legal effect.

In some countries and states, notaries are required to undergo specific training in the performance of their duties. Many must also first serve as an apprentice before being commissioned or licensed to practice their profession. Even licensed lawyers (such as barristers or solicitors) must go through additional specialized notarial training and apprenticeship, in many countries, before being allowed to practice the profession of a notary. A notary public commissioned in the United States of America is not an attorney-at-law unless also admitted to the bar. (Although some countries consider the profession of a civil law notary, itself, to be the practice of law. Many even have institutes of higher education issuing degrees in the field. In the United Kingdom, for example, a notary public can perform any task a solicitor or other lawyer can perform, as part of their notary public duties, with the sole exception of representing others before the courts, unless they are also licensed as a barrister.)

Notaries Public (also called "notaries" or "public notaries") hold an office which can trace its origins back to ancient Rome, when they were called scribae , tabellius or notarius. They are easily the oldest continuing branch of the legal profession, existing throughout the whole of the world.

The history of Notaries is set out in detail in Chapter 1 of Brooke's Notary (12th edition):

The office of a public notary is a public office. It has a long and distinguished history. The office has its origin in the civil institutions of ancient Rome. Public officials, called "scribae", that is to say, scribes, rose in rank from being mere copiers and transcribers to a learned profession prominent in private and public affairs. Some were permanent officials attached to the Senate and courts of law whose duties were to record public proceedings, transcribe state papers, supply magistrates with legal forms, and register the decrees and judgments of magistrates.

In the last century of the Republic, probably in the time of Cicero, a new form of shorthand was invented and certain arbitrary marks and signs, called "notae", were substituted for words in common use. A writer who adopted the new method was called a "notarius". Originally, a notary was one who took down statements in shorthand and wrote them out in the form of memoranda or minutes. Later, the title "notarius" was applied almost exclusively to registrars attached to high government officials, including provincial governors and secretaries to the Emperor.

Notwithstanding the collapse of the Western Empire in the 5th century AD, the notary remained a figure of some importance in many parts of continental Europe throughout the Dark Ages. When the civil law experienced its renaissance in mediæval Italy from the 12th century onwards, the notary was established as a central institution of that law, a position which still obtains in countries whose legal systems are derived from the civil law.

The separate development of the common law in England, free from most of the influences of Roman law, meant that notaries were not introduced into England until later in the 13th and 14th centuries. At first, notaries in England were appointed by the Papal Legate. In 1279 the Archbishop of Canterbury was authorised by the Pope to appoint notaries. Not surprisingly, in those early days, many of the notaries were members of the clergy. In the course of time, members of the clergy ceased to take part in secular business and laymen, especially in towns and trading centres, began to assume the official character and functions of a modern notary.

The Reformation produced no material change in the position and functions of notaries in England. However, in 1533 the enactment of "the Act Concerning Peter's Pence and Dispensations" (The Ecclesiastical Licences Act, 1533) terminated the power of the Pope to appoint notaries and vested that power in the King who then devolved it to the Archbishop of Canterbury who in turn devolved it to the Master of the Faculties.

Traditionally, notaries recorded matters of judicial importance as well as private transactions or events where an officially authenticated record or a document drawn up with professional skill or knowledge was required.

Common law jurisdictions

The duties and functions of notaries public are described in Brooke's Notary on page 19 in these terms:

Generally speaking, a notary public [...] may be described as an officer of the law [...] whose public office and duty it is to draw, attest or certify under his official seal deeds and other documents, including wills or other testamentary documents, conveyances of real and personal property and powers of attorney; to authenticate such documents under his signature and official seal in such a manner as to render them acceptable, as proof of the matters attested by him, to the judicial or other public authorities in the country where they are to be used, whether by means of issuing a notarial certificate as to the due execution of such documents or by drawing them in the form of public instruments; to keep a protocol containing originals of all instruments which he makes in the public form and to issue authentic copies of such instruments; to administer oaths and declarations for use in proceedings [...] to note or certify transactions relating to negotiable instruments, and to draw up protests or other formal papers relating to occurrences on the voyages of ships and their navigation as well as the carriage of cargo in ships." [Footnotes omitted.]

A notary, in almost all common law jurisdictions, is a qualified, experienced practitioner trained in the drafting and execution of legal documents. (A notable exception being 48 of the 50 U.S. States and some parts of Canada.) Traditionally, notaries recorded matters of judicial importance as well as private transactions or events where an officially authenticated record or a document drawn up with professional skill or knowledge was required. Specifically, the functions of notaries include the preparation of certain types of documents (including international contracts, deeds, wills and powers of attorney) and certification of their due execution, administering of oaths, witnessing affidavits and statutory declarations, certification of copy documents, noting and protesting of bills of exchange and the preparation of ships' protests.

Significant weight attaches to documents certified by notaries. Documents certified by notaries are sealed with the notary's seal or stamp and are recorded by the notary in a register (also called a "protocol") maintained and permanently kept by him or her. These are known as "notarial acts". In countries subscribing to the Hague Convention Abolishing the Requirement for Legalization for Foreign Public Documents only one further act of certification is required, known as an apostille) and is issued by a government department (usually the Foreign Affairs Department or similar). For other countries an "authentication" or "legalization" must be issued by the Foreign Affairs Ministry of the country from which the document is being sent or the Embassy, Consulate-General or High Commission of the country to which it is being sent.

United States

In the United States, generally speaking, a notary public is a person appointed by a state government (often the governor or the secretary of state of the state, or in some cases the state legislature) to serve the public as an impartial witness. Since the notary is a state officer, whether the jurisdiction is common law or civil law is determined on a state-by-state basis; Louisiana is the only civil law state.^[1] In most states, only qualified persons can apply for such an appointment, called a commission. Qualifications vary from state to state, but states often bar people with certain types of criminal convictions and/or below a certain age from being appointed, and applicants usually must pass an examination covering notary practices and law. The material for such exams is typically contained in a booklet published by the state. Some states also require a bond or insurance.

Notaries in the United States are much less closely regulated than notaries in civil law jurisdictions or in most other common law countries, typically because U.S. notaries have less authority. In the United States, a non-attorney notary may not offer legal advice or prepare documents (with the exception of Louisiana) and cannot recommend how a person should sign a document or even what type of notarization is necessary. In many cases, a notary cannot authenticate a copy of a document. The most common notarial acts in the United States are the taking of acknowledgements and oaths.

• An acknowledgement is an attestation by a notary that a person proved his or her identity to the notary's satisfaction; then either signed the document in question in the notary's presence or acknowledged that a signature on the document was their own; and that they signed intending to "execute," or put into legal effect, the document. States vary in the specific requirements for identification and whether the person need actually sign the document in front of the notary. The typical form for an acknowledgement is:

On the ....day of .... in the year...before me, the undersigned, personally appeared ...personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

• A jurat is the official written statement by a notary public that he or she has administered and witnessed an oath or affirmation for an oath of office, or on an affidavit - that, is that a person has sworn to or affirmed the truth of information contained in a document, under penalty of perjury, whether that document is a lengthy deposition or a simple statement on an application form. The simplest form of jurat and the oath or affirmation administered by a notary are:

• Jurat: "Sworn to before me this ........ day of ........, 20 ......"

• Oath: "Do you solemnly swear that the contents of this affidavit subscribed by you is correct and true?"

• Affirmation (for those opposed to swearing oaths): "Do you solemnly, sincerely, and truly, declare and affirm that the statements made by you are true and correct?"

In most cases, all of the acts of a notary must include a venue, or official listing of the place where they happened, usually in the form of the state and county, with the abbreviation "ss" for the Latin scilicet, "more particularly," often in this form:

State of .......)
                )ss:
County of.......)

The National Notary Association estimates the United States has 4.5 million notaries public.^[2]

[edit] Finding A Notary

Banks will often have a notary public on staff to notarize documents for their clients. In addition, mail box companies often have a Notary Public on hand with the fees varying by state. Most state web sites have online information on notary regulations and may provide resources on finding a notary as well. In certain states, government offices offer notary services with some states providing the service at no charge.

For individuals who are unable to travel to a notary, there are mobile notaries who travel to the individual to notarize the document. These mobile notaries public may be found in local phone directories as well as through search engine results.

[edit] Controversies

A Maryland requirement that to obtain a commission, a notary declare his belief in God, as required by the Maryland Constitution, was found by the United States Supreme Court in Torcaso v. Watkins, 367 U.S. 488 (1961) to be unconstitutional. Historically, some states required that a notary be a citizen of the United States. However, the U.S. Supreme Court, in the case of Bernal v. Fainter 467 U.S. 216 (1984) (the Fainter case), declared that to be impermissible.

In the U.S., there are reports of notaries (or people claiming to be notaries) having taken advantage of the differing roles of notaries in common law and civil law jurisdictions to engage in the unauthorized practice of law. The victims of such scams are typically illegal immigrants from civil law countries who need assistance with, for example, their immigration papers and want to avoid hiring an attorney. Confusion often results from the mistaken premise that a notary public in the United States serves the same function as a Notario Público in Spanish-speaking countries (which are civil law countries, see below). Prosecutions in such cases are difficult, as the victims are often deported and thus unavailable to testify.

[edit] Commissioned officers

A Commissioned Officer in the United States Armed Forces is not considered a Notary; however, federal law allows a commissioned officer to certify documents and administer oaths. In addition to the powers granted by the federal government, some states have enacted laws granting notarial powers to commissioned officers.^[3]

[edit] California

California notaries must take a 6 hour class before taking the notary exam. California anti-fraud law requires a thumbprint in the journal entry for certain types of transactions. Documents with blank spaces cannot be notarized (a further anti-fraud measure). California explicitly prohibits notaries from using the literal Spanish translation of their title [1] (PDF file). The use of a notary seal is required.

Certificates frequently used by California notaries include acknowledgments and jurats. An acknowledgment is a signed statement by the notary that the signer (1) personally appeared before the notary, (2) is personally known or was positively identified by the notary, and (3) acknowledged having signed the document. A jurat is a certificate stating that the signer (1) personally appeared before the notary, (2) is personally known or was positively identified by the notary (3) signed the document in the presence of the notary, and (4) took an oath or affirmation administered by the notary. The oath or affirmation is designed to compel truthfulness in a signer, through fear of the law or of God.

[edit] Florida

Florida Notary Public are appointed by the Governor to serve a four year term. New applicants and commissioned notary public must be bona fide residents of the State of Florida and first time applicants must complete a mandatory three hour online or in-person Notary Public Education class. Florida state law also requires that a notary public have a bond in the amount of $7,500.00, A bond is required in order to compensate an individual harmed as a result of a breach of duty by the notary. In other words, the bond protects a notary's client (not the notary). Applicants are submitted and paid through a state approved bonding agent. Florida is one of three states (Maine and South Carolina are the others) where a Notary Public can solemnize the rites of matrimony (Perform a marriage ceremony).^[4]

[edit] Louisiana

The Louisiana Notary is a civil law notary with broad powers, as authorized by law, usually reserved for the American style combination "Barrister/Solicitor" lawyers and other legally authorized practitioners in other states. A commissioned notary in Louisiana is a civil law notary that can perform/prepare many civil law notarial acts usually associated with attorneys and other legally authorized practitioners in other states, except, represent another person or entity before a court of law for a fee. Notaries are not allowed to give "legal" advice, but they are allowed to give "notarial" advice (i.e.) explain or recommend what documents are needed or required to perform a certain act and do all things necessary or incidental to the performance of their civil law notarial duties. They can prepare any document a civil law notary can prepare and, if ordered or requested to by a judge, prepare certain notarial legal documents, in accordance with law, to be returned and filed with that court of law.^[5]

[edit] Maine

Maine Notary Public are appointed by the Secretary of State to serve a seven year term. Maine is one of three states (Florida and South Carolina are the others) where a Notary Public can solemnize the rites of matrimony (Perform a marriage ceremony).^[6]

[edit] Maryland

Maryland Notary Public are appointed by the Secretary of State to serve a four year term. New applicants and commissioned notary public must be bona fide residents of the State of Maryland.

[edit] Nevada

The Secretary of State is charged with the responsibility of appointing notaries by the provisions of Chapter 240 of the Nevada Revised Statutes. Nevada Notaries Public who are not also practicing attorneys are prohibited by law from using "notario", "notario publico" or any non-English term to describe their services. (2005 Changes to NRS 240)

Nevada notary duties: administer oaths or affirmations; take acknowledgments; use of subscribing witness; certify copies; and execute jurats or take a verification upon oath or affirmation.

The State of Nevada Notary Division Page provides more information about duties, requirements, appointments, and classes.

[edit] New Jersey

Notaries are commissioned by the State Treasurer for a period of five years. Notaries must also be sworn in by the clerk of the county in which he or she resides. One can become a notary in the state of New Jersey if he or she: (1) is over the age of 18; (2) is a resident of New Jersey OR is regularly employed in New Jersey and lives in an adjoining state; (3) has never been convicted of a crime under the laws of any state or the United States, for an offense involving dishonesty, or a crime of the first or second degree, unless the person has met the requirements of the Rehabilitated Convicted Offenders Act (NJSA 2A:168-1). Notary applications must be endorsed by a state legislator.

Notaries in the state of New Jersey serve as impartial witnesses to the signing of documents, attests to the signature on the document, and may also administer oaths and affirmations. Seals are not required; many people prefer them and as a result, most notaries have seals in addition to stamps. Notaries may administer oaths and affirmations to public officials and officers of various organizations. They may also administer oaths and affirmations in order to execute jurats for affidavits/verifications, and to swear in witnesses.

Notaries are prohibited from pre-dating actions; lending notary equipment to someone else (stamps, seals, journals, etc); preparing legal documents or giving legal advice; appearing as a representative of another person in a legal proceeding. Notaries should also refrain from notarizing documents in which they have a personal interest.

[edit] New York

Main article: Notary public (New York)

New York notaries are empowered to administer oaths and affirmations (including oaths of office), to take affidavits and depositions, to receive and certify acknowledgments or proof of deeds, mortgages and powers of attorney and other instruments in writing; to demand acceptance or payment of foreign and inland bills of exchange, promissory notes and obligations in writing, and to protest these (that is, certify them) for non-acceptance or non-payment. They are not empowered to marry couples, their notarization of a will is insufficient to give the will legal force, and they are strictly forbidden to certify "true copies" of documents. Every county clerk's office in New York must have a notary public available to serve the public free of charge.

[edit] Pennsylvania

Main article: Notary public (Pennsylvania)

A notary in the Commonwealth of Pennsylvania is empowered to perform seven distinct official acts: take affidavits, verifications, acknowledgments and depositions, certify copies of documents, administer oaths and affirmations, and protest dishonored negotiable instruments. A notary is strictly prohibited from giving legal advice or drafting legal documents such as contracts, mortgages, leases, wills, powers of attorney, liens or bonds.

[edit] South Carolina

South Carolina Notary Public are appointed by the Governor to serve a ten year term. All applicants before submitting their application to the Secretary of State must first have that application endorsed by a state legislator. South Carolina is one of three states (Florida and Maine are the others) where a Notary Public can solemnize the rites of matrimony (Perform a marriage ceremony).^[7]

[edit] Utah

Utah requires that impression seals be used, and the seal must be in purple ink.

[edit] Virginia

Main article: notary public (Virginia)

A Virginia notary is authorized to acknowledge signatures, take oaths, and certify copies of non-government documents which are not otherwise available, e.g. a notary cannot certify a copy of a birth or death certificate since a certified copy of the document can be obtained from the issuing agency.

[edit] Civil Law jurisdictions

The role undertaken by notaries in civil law countries is much greater than in common law countries. Notaries in the former countries frequently undertake work done in common law countries by the Titles Office and other Government agencies. The qualifications imposed by some countries is much greater. In Greece, for example, a practitioner must choose to be either a solicitor or a notary.

This should be contrasted with the Latin American notario who may be similar to an attorney at law or lawyer. A French notaire, a German Notar and an Italian Notaio register wills and other documents, and authenticates transactions of real estate.

In the few United States jurisdictions where trained notaries are allowed (such as Puerto Rico), the practice of these jurists is limited to non-judicial legal advice, property conveyencing and legal drafting. See civil law notary.

References

1. ^ Paul M. Herbert LSU Law Center. (2006). Louisiana State University. Retrieved 2006-08-09 from http://www.law.lsu.edu
2. ^ History of the NNA. Retrieved on 2006-07-09.
3. ^ Notary Public. U.S. Coast Guard (2007-03-18). Retrieved on 2007-02-26.
4. ^ Florida Department of State. (n.d.). Marriage ceremony. Viewed 3 December 2006.
5. ^ http://www.lna.org/
6. ^ Maine Department of the Secretary of State. (n.d.). Notary Public Handbook. p. 8 Viewed 3 December 2006.
7. ^ South Carolina Office of the Secretary of State. (2005). Duties of a South Carolina Notary Public