Notary Public, an officer appointed to draw up and attest deeds and contracts, and perform other similar functions. The name and office of notary are of Roman origin. The notarii, so called from the notoe or short-hand characters in which they minuted the instruments which they drew, had not a public character. They were mere scribes, who wrote out the agreements of those who employed them. The writings thus composed were completed by the signatures of the parties. Unless these signatures were attested by witnesses or verified by proof of the handwriting, the instruments could have no authority in the courts. But it was possible to render them valid by a declaration of their tenor before a magistrate and by registration of them in the public records. Like the notarii were the taoelliones forenses, who drew up legal documents and statements to be sent to the courts of law or presented to the different civil authorities. The taoelliones formed themselves into a guild under a presiding officer. A constitution of Diocletian prescribed a tariff of fees for them. As the craft grew in importance, the state began to prescribe the terms of admission and removal of the members. Laws were made to define the legal effect of the instruments which they framed.
It was required that the tabellio be present at the execution of the instrument, and affix to it his signature and the date. Three witnesses must also subscribe their names ordinarily, but four were necessary if the principal parties could not read. - -In imitation of these Roman officers, the Frankish kings created notaries, and guarded by laws against the abuse of their functions. During the middle ages notaries were appointed directly by the popes or emperors, or under their immediate authority. In France, by an ordinance of 1312, Philip the Fair forbade for the future the creation of notaries to all except prelates, barons, and those to whom appointment pertained as an ancient right in virtue of their estates. From that time onward notaries were invested in France with a qualified judicial character. They had authority, for example, to insert in the memoranda of obligations a clause granting summary execution to the creditor in case of a non-fulfilment of the contract. But this voluntary jurisdiction which notaries had so long possessed in France, was taken from them by the legislation of the republic.
They are now public officers, formally recognized indeed as sharers in the civil administration, but deriving their authority from and representing rather the state than the courts.
They are commissioned for life, and can be removed only by judicial decree. They are authorized to draw instruments of various characters; and in matters which are of more than private importance, they retain in their custody the original drafts, and furnish copies of them to the parties concerned. They are often employed under the direction of the courts in making out inventories and in the distribution of estates, and perform those notarial acts which are required by law in respect to wills, gifts, marriage contracts, and protests. Notarial chambers, which consist of deputies chosen by the profession, regulate the rules of practice, decide upon the admission of candidates, and punish members who are guilty of abuse of their office. All documents which were executed in the presence of two notaries, or of one notary and two witnesses, and are attested by them, receive full credence in all courts of law. - Notaries were known in England before the conquest. In the early part of the 14th century they were commonly employed, for in 1347 we find them frequently named in the petitions of the commons to the king. Ever since that time the office has been one of prominence and importance.
Until recently the English notary derived his authority to practise from the court of faculties of the archbishop of Canterbury. The ecclesiastical courts were abolished by the statutes 20 and 21 Victoria, c. 77, 85; but these acts did not affect the notaries. Their authority extends to the drawing of deeds relating to real and personal property, to protesting bills of exchange, authenticating and certifying copies of documents, and to the attestation of instruments going abroad. They receive the affidavits of mariners and shipmasters, and draw their protests. ' English notaries have always considered themselves competent to administer oaths and affirmations. - The functions of notaries in the United States are similar to those exercised by the same officers in England, though in general they seem to be limited in practice to the attestation of writings of a mercantile kind, and to the protestation of bills and notes. They are usually commissioned by the executive of their states, and derive their particular powers from statute provisions. In most of the states acknowledgments of deeds before them have the same validity as those made before justices of the peace, and they are empowered to administer oaths.
In those states where the powers of these officers are not distinctly set forth, it may be supposed that they include such acts as attach to the office by general mercantile usage. - In respect to the value of notarial acts in evidence, it may be remarked that the admissibility in evidence of notarial acts done in a foreign country, and their authenticity, rests solely on the ancient mercantile usage, which makes what may be termed the commercial law of nations. In respect to hills of exchange and similar paper of merchants, there is no doubt of the effect of notarial acts. It is the rule of English and of American law that the minutes of a foreign notary of his protest for non-acceptance, when attested by his signature and notarial seal, are full proof of these facts, and require no auxiliary support. But the principle that the foreign notary's certificate is conclusive evidence only of such acts as he does under the law merchant, has been upheld in a case where a deed of partition made and acknowledged before a foreign notary was pronounced insufficient in respect to the acknowledgment; and in England the certificate of an American notary under seal of the execution of a power of attorney in his presence was not admitted as evidence of the fact, though the notary's certificate was verified by the British consul.
Independently therefore of special laws, which in some states indeed give validity to acknowledgments and the like acts if done before foreign notaries, no certificates of theirs which concern matters foreign to the mercantile law will be recognized as evidence. The protest of a promissory note at home is not, unless made so by the local statute, an official notarial act, as the protest of a foreign bill of exchange is; and therefore, after the notary's death, the note of such a protest is not of itself competent evidence in chief. Yet when it is duly authenticated by signature and seal, it will be admitted as secondary evidence of the notarial acts which it recites. So the memoranda entered in the office books of the notary, either by him in person or by his clerk in the ordinary course of business, are admissible in evidence when the party is dead who could directly speak to the fact.