With the exceptions of Louisiana, Puerto Rico, and Quebec, whose private law is based on civil law, a notary public in the rest of the United States and most of Canada has powers that are far more limited than those of civil-law or other common-law notaries, both of whom are qualified lawyers admitted to the bar: such notaries may be referred to as notaries-at-law or notary lawyers. Therefore, at common law, notarial service is distinct from the practice of law, and giving legal advice and preparing legal instruments is forbidden to lay notaries.
Notaries are appointed by a government authority, such as a court or lieutenant governor, or by a regulating body often known as a Society or Faculty of Notaries Public. For a notary-at-law, an appointment is usually for life, but lay notaries are commissioned for a briefer term with the possibility of renewal. Appointments and their number for a given notarial district are highly regulated. Since the majority of American notaries are lay persons, however, commissions are not regulated, which is why there are far more notaries in the United States than in other countries (4.5 million[2] vs. approx. 740 in England and Wales[3]).
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. To these documents a notary affixes a notarial certificate which attests to the execution of the document, usually by the person who appears before the notary, known as an appearer or constituent. In places where notaries-at-law are the norm, a notary may also draft legal instruments known as notarial acts which have probative value and executory force as would any lawyer's writing. Originals or duplicate originals are then filed and stored in the notary's archives, or protocol.
Notaries in some countries and states are required to undergo special training in the performance of their duties. Many must also first serve as an apprentice before being commissioned or licensed to practice their profession. In many countries, even licensed lawyers, e.g., barristers or solicitors, must follow a prescribed specialized course of study and be mentored for two years before being allowed to practice as a notary. Notaries public in the United States, of which the vast majority are lay people, may not engage in any activities that could be construed as the practice of law unless they are also a qualified attorney.
In civil or bijuridical jurisdictions, such as South Africa, the Office of notary public is a legal profession with educational requirements similar to those for lawyers. Many even have institutes of higher learning who offer degrees in notarial law.
Notaries Public (also called "notaries," "notarial officers," or "public notaries") hold an office which can trace its origins back to ancient Rome, when they were called scribae, tabellius or notarius. Their work would later be transcribed correctly in its entirety by a calligraphus. They are easily the oldest continuing branch of the legal profession worldwide.
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 authorized 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 Licenses 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.
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 other than most of North America (which, it would be remiss to omit, accounts for most of the population of the world under common law), is a practitioner trained in the drafting and execution of legal documents.[citation needed] Notaries traditionally 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. The functions of notaries specifically 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.
