Same-sex marriage law means notaries can’t discriminate in performing weddings

AUGUSTA — Notaries public in Maine who officiate weddings of opposite-sex couples and refuse to marry same-sex couples could be subject to a claim of discrimination under the Maine Human Rights Act, according to the Maine secretary of state’s office.

The notice sent to municipal clerks this week effectively means an all or none approach for notaries public when it comes to performing weddings.

Notaries public in Maine may, but are not required to, perform weddings, Cathy Beaudoin, who oversees the licensing of notaries for the Department of the Secretary of State, said in an email to municipal clerks dated Monday.

The email clarified for notaries public whether they would be required to perform same-sex weddings when the new law allowing gay couples to marry goes into effect Dec. 29. The Bangor Daily News was provided a copy of the email by the Bangor city clerk’s office.

“If you are a Notary Public who performs marriages and you refuse to perform a marriage for a couple due to a person’s race, color, sex, sexual orientation, physical or mental disability, religion, creed, age, ancestry or national origin, you may be subject to a claim of discrimination.’’ Beaudoin wrote. “The new law authorizing same-sex marriage does not provide any exemption from liability for Maine Notaries who refuse to perform marriages for same-sex couples.”

There are about 25,000 notaries public licensed by the Bureau of Corporations, Elections and Commissions, a division of the secretary of state’s office, Barbara Redmond, who works in the bureau, said Wednesday in a phone interview.

The office does know how many officiate weddings. The office of vital records does not keep track of how many marriages are performed by clergy and how many are performed by notaries.

The powers of a notary public also include the administration of oaths or

affirmations, certification of an affidavit or an acknowledgment of instruments related to real estate transfers, the certification of copies of private documents and absentee ballots and the solemnization of marriages, according to the Notary Public Handbook and Resource Guide posted on the secretary of state’s website.

“Notaries most often witness financial transactions, but they are authorized to perform marriages,” Redmond said.

After the referendum allowing same-sex couples to marry was passed by voters on Nov. 6, a few notaries called the secretary of state’s office with questions about how the new law applied to them, Redmond said. A handful resigned.

The new law exempts clergy who object to same-sex marriage for religious reasons. It does not exempt notaries from officiating at same-sex weddings, even if they have religious objections, said Carroll Conley, executive director of the Christian Civic League of Maine and the former co-chairman of Protect Marriage, which opposed the referendum.

Conley recommended that notaries public who object to same-sex marriage on religious grounds but have performed traditional marriages in the past, stop officiating at weddings to avoid a possible conflict with the provisions of the Maine Human Rights Act.

“There are ambiguities in the law you could drive a truck through,” Conley said Wednesday. “The attorney general’s office and the secretary of state’s office wouldn’t talk about the possible implications before the election, so now we’re trying to identify and define where the conflicts are.”

David Farmer, who was spokesman for Mainers United for Marriage, the campaign that supported the referendum, said Wednesday there was no need to exempt notaries public because they are not required to perform marriages.

“Notary publics perform civil functions as opposed to religious functions,” he said Wednesday. “They are required to perform their duties as actors of the state. They can decide to not do weddings for any reason.”

Burke Soileau, 78, of Sebec has never performed a wedding. All he’s done as a notary is act as a witness for people voting absentee, but he was worried about how the new law would affect him.

“I’m a Catholic and under no circumstances would I do a same-sex marriage,” he said last month. “I’m on the list of notary publics [posted on the secretary of state’s website] and I’m concerned that if I refused to perform a same-sex marriage, I could be challenged legally.”

Soileau, who said last month that he was considering giving up his license, said Wednesday that he would renew it and continue helping local voters cast absentee ballots.

Dianne Lovejoy, deputy Bangor city clerk, performed between 35 and 40 weddings last year as a notary public. She said Wednesday that she is looking forward to a “surge in business” after Dec. 29.

“I love meeting the people,” she said. “It’s a fun thing to do. Everybody’s happy.”

Lovejoy, who said some people seek her out because of her surname, already has begun searching online for vows that would be appropriate for same-sex couples.

The deputy city clerk said she will be working at Bangor City Hall from 6 to 8 a.m. Dec. 29 issuing marriage licenses but will be too busy to officiate weddings that day. About half a dozen volunteers who are notaries will be on hand to perform weddings.

Which documents may be apostillised?

The Convention applies only to public documents. These are documents emanating from an authority or official connected with a court or tribunal of the State (including documents issued by an administrative, constitutional or ecclesiastical court or tribunal, a public prosecutor, a clerk or a process-server);administrative documents; notarial acts; and official certificates which are placed on documents signed by persons in their private capacity, such as official certificates recording the registration of a document or the fact that it was in existence on a certain date and official and notarial authentications of signatures. The main examples of public documents for which Apostilles are issued in practice include birth, marriage and death certificates; extracts from commercial registers and other registers; patents; court rulings; notarial acts and notarial attestations of signatures; academic diplomas issued by public institutions. Diplomas issued by private institutions may not be apostillised directly; a "private" diploma may, however, bear an official certificate issued by a notary, Solicitor, Agency or any other person or authority competent under the law of the State of origin of the diploma to authenticate the signature on the diploma. This official certificate is a public document under the Convention and thus may be apostillised. In such a case the Apostille does not relate to the diploma itself; instead it certifies the authenticity of the certificate on or accompanying the diploma. Finally, the Convention neither applies to documents executed by diplomatic or consular agents nor to administrative documents dealing directly with commercial or customs operations (e.g., certificates of origin or import or export licenses).

The provisions of the Convention do not specify whether Apostilles should only be issued for original public documents or whether they may also be affixed to certified copies of public documents. However, in light of its practical importance, this question was expressly addressed by the 2003 Special Commission (SC). The Conclusion / Recommendation N° 11 of the meeting reads as follows: "Regarding the application of an Apostille to a certified copy of a public document, the SC concluded that Article 1 of the Convention applies. Individual States, however, may decline to issue an Apostille to the certified copy of a document on the grounds of public policy." (The full text of the Conclusions and Recommendations of the 2003 SC is available under "Documents related to 2003 Special Commission"). The last part of the Conclusion as regards a possible refusal to issue Apostilles on certified copies was mainly intended to address the specific issue of passports copies.

There are three significant differences between notaries and other lawyers.

the duty of a notary is to the transaction as a whole, and not just to one of the parties. In certain circumstances a notary may act for both parties to a transaction as long as there is no conflict between them, and in such cases it his or her duty is to ensure that the transaction that they conclude is fair to both sides.
a notary will often need to place and complete a special clause onto or attach a special page (known as an eschatocol) to a document in order to make it valid for use overseas.

In the case of some documents which are to be used in some foreign countries it may also be necessary to obtain another certificate known either as an “authentication” or an “apostille” (see above) (depending on the relevant foreign country) from the Department of Foreign Affairs and Trade.

a notary identifies himself or herself on documents by the use of his or her individual seal. Such seals have historical origins and are regarded by most other countries as of great importance for establishing the authenticity of a document.

Their principal duties include:

attestation of documents and certification of their due execution for use in Australia and internationally
preparation and certification of powers of attorney, wills, deeds, contracts and other legal documents for use in Australia and internationally
administering of oaths for use in Australia and internationally
witnessing affidavits, statutory declarations and other documents for use in Australia and internationally
certification of copy documents for use Australia and internationally
exemplification of official documents for use internationally
noting and protesting of bills of exchange
preparation of ships’ protests
providing certificates as to Australian law and legal practice

Although it was once usual for Australian notaries to use an embossed seal with a red wafer, some now use a red inked stamp that contains the notary’s full name and the words “notary public”. It is also common for the seal or stamp to include the notary’s chosen logo or symbol.

In South Australia and Scotland, it is acceptable for a notary to use the letters “NP” after their name. Thus a South Australian notary may have “John Smith LLB NP” or similar on his business card or letterhead.

Australian notaries do not hold “commissions” which can expire. Generally, once appointed they are authorized to act as a notary for life and can only be “struck off” the Roll of Notaries for proven misconduct. In certain States, for example, New South Wales and Victoria, they cease to be qualified to continue as a notary once they cease to hold a practising certificate as a legal practitioner. Even judges, who do not hold practising certificates, are not eligible to continue to practise as notaries.

All Australian jurisdictions also have Justices of the Peace (JP) or Commissioners for Affidavits and other unqualified persons who are qualified to take affidavits or statutory declarations and to certify documents. However they can only do so if the relevant affidavit, statutory declaration or copy document is to be used only in Australia rather than in a foreign country, with the possible exception of a few Commonwealth countries not including the United Kingdom or New Zealand except for very limited purposes. Justices of the Peace (JPs) are (usually) laypersons who have minimal, if any, training (depending on the jurisdiction) but are of proven good character. Therefore a US notary resembles an Australian JP rather than an Australian notary.

The Roman Empire and the Notary Public

The history of the office of notary public is closely related to the history of the Roman Empire and the early Catholic Church. The Romans developed the office and used it in the lands they dominated. The Church established its own system of notaries and, because of its position in civil affairs following the decline of the Roman Empire, influenced the development of the office.

The word “notary” comes from the Latin word “nota,” a system of shorthand developed by M. Tullius Tiro (103-3 B.C.), the clerk of Cicero. Tiro used nota to take down Cicero’s speeches. People employed to receive instructions for the drafting of agreements, conveyances, and other types of instruments adopted this method of writing, and the term “notarius” was used to describe them.

These notarii became semi-officials during the early days of the Roman Empire. Their number grew and their influence increased as the empire expanded. They were also known as scriba, cursor, tabularius, tabellio, exceptor, acuarius, and notarius, depending on the time in which they lived and the duties that they performed. Over time, they formed themselves into a sort of guild or company, and the government undertook a limited amount of supervision and regulation, such as fixing the fees they could charge.

Notarii were officers of the Catholic Church from a very early time. Clement, the fourth Pope, appointed seven men who were stationed in various parts of Rome to describe the acts of any martyrs in their appointed area. Later, the Church claimed international jurisdiction and declared that papal notaries could act in any country.

The Roman Empire reached its zenith during the period 96-180 A.D., during which time it united 45 provinces containing more than 75 million people. Their empire encompassed Spain, Britain, Central Europe, and all lands bordering the Mediterranean Sea. The principal Roman influences on these conquered lands were their systems of law and government. The value of the office of the notary was apparent, and the use of the office spread throughout the empire.

The Roman Empire started to decline near the end of the second century, and by the year 500, the collapse was complete. During the turmoil that followed, the Pope took the place of the Roman Emperors, and the Church took over many functions the government had neglected.

During the eighth century, the Holy Roman Empire was created in Central Europe. In the year 803, the Emperor Charlemagne directed his deputies to nominate notaries throughout the empire, and in 805, he required all bishops, abbots, and counts to have their own notaries. The emperor invested the acts of these notaries with public authority. Charlemagne and the German emperors who followed him claimed all the authority that had belonged to the Roman emperors, including the authority to appoint notaries. The emperors declared that these imperial notaries could exercise their duties in any country ever subjected to the Roman Empire, even if the country was independent.

The Notary in England

The office of the notary public did not attain the position of importance in England that it did in most of Europe. The reasons can be found in the economic conditions and the state of the law during the Middle Ages and the Reformation that followed.

England had notaries during the Middle Ages. Documentary evidence shows notaries were practicing there during the reign of Edward the Confessor (1043-1066 A.D.), and they were well known during the reign of Edward II (1307-27 A.D.). Notaries were needed for the ecclesiastical courts and commercial transactions involving foreign countries. The imperial and papal notaries who filled these needs sometimes irritated the English kings. For example, in 1320 Edward II issued two writs prohibiting imperial notaries from practicing in England and denying credit to their work.

The law did not require deeds and other instruments in common use to be prepared or attested by professional experts. Since most of the commerce was in foreign hands, the medieval common law did not need or recognize notaries. During the fifteenth and sixteenth centuries, England began to handle much of its foreign commerce, so notaries were required to draw up different kinds of instruments. However, the notarial system as it was known under the Romans never really caught on.

The Reformation began in England with King Henry VIII’s revolt against the Pope. Henry VIII, a devout Catholic, had a dispute with the Pope regarding his marital status. As a result, he demanded that Parliament enact a law giving him the right to appoint bishops in England without the Pope’s permission. He immediately installed a puppet Archbishop of Canterbury who solved Henry’s problem by declaring his marriage to Anne Boleyn valid. The Pope claimed Henry was still married to Catherine of Aragon and excommunicated him. Henry retaliated in 1534 by having Parliament enact a law making him the head of the Church of England and giving him the exclusive right to make appointments, including appointing notaries. Parliament created a Court of Faculties, attached to the Archbishop of Canterbury and empowered to delegate notaries.

The Reformation reduced the ecclesiastical law to a subordinate position. During the seventeenth century, common law became the supreme body of law in England, so the office of notary public, an official of the ecclesiastical and civil law, became less important. In just a little over a hundred years after Henry VIII severed the ties with Rome, some 60,000 settlers left England to find a new life in the New World. Twenty thousand settled in New England, and the rest in Maryland, Virginia, and Bermuda.

The settlers brought with them the common law of England, including the office of notary public. We can get an idea of the nature of the office in the early 1700’s from this description: “We call him a notary public, who confirms and attests the truth of any deeds or writings, in order to render the same more credible and authentic in any country whatsoever. And he is principally made use of in courts of judicature and in business relating to merchants. For a notary public is a certain kind of witness, and therefore, ought to give evidence touching such things as fall under his corporeal senses, and not of such matters as fall under the judgement of understanding.”

The Notary in America

The office of notary public did not develop in America as it did in Europe. This was because the colonists adopted the common law of England where the office never took deep roots as it did in other countries. The State of Louisiana is an exception. Louisiana was settled by the French (whose legal system is based on the Roman law), and the functions of notaries are more extensive.

Early colonial charters and state constitutions did not mention the office of notary public. There was no need to. The office was a part of the accepted rules the colonists brought with them. Common law and the customs and rules recognized among merchants also defined the duties of the office.

The Colony of New Haven (Connecticut) appointed the first notary public in America in 1639. During the seventeenth century, Massachusetts, New Amsterdam (New York), and Virginia appointed notaries. Legislatures appointed the first notaries. Later the Governors, as chief executives, assumed the right to appoint notaries. In 1720, the Archbishop of Canterbury appointed a notary in Boston, but the notary was forbidden to practice by the Massachusetts Legislature.

The Notary Public Profession

The Office of notary public is one of great antiquity and historical significance. It is unclear, however, when or where the first public notary was formally appointed. One of the earliest references to a notary dates back to the time of Cicero (106 - 43BC), the famed Roman orator and statesmen, who, it is claimed, employed persons skilled in the art of writing to record or 'note' his speeches.

Notaries soon developed into a formal branch of the legal profession and notaries were often attached to the Imperial court and prepared and engrossed deeds and other legal documents, which were then sealed under the seal of the court. Eventually, notaries were granted the right to use their own official seals to give their acts "public" status and advice on law, including land transactions. The Roman Consuls and subsequently the emperors of the Roman Empire would appoint notaries to their public office.

The position of notary public remained a figure of importance throughout many parts of continental Europe and was maintained throughout the Dark Ages and Italian Renaissance as a central institution of law. This position remains to date within many countries that derive their legal systems from bodies of civil law.

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 medieval 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."

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 at p 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, for use anywhere in the world, 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."

After the abdication in 476 AD of Romulus Augustus, the last emperor of Rome, the papacy became the de facto ruler of Rome. When Pope Leo III crowned Charlemagne emperor of the Holy Roman Empire in 800AD the empire encompassed the entire heartland of Western Europe, stretching from the Danube to the Pyrenees and from Rome to the North Sea. Ecclesiastical notaries were by then part of the papal household and were known to deal with both ecclesiastical and civil matters. At this time it had become the practice of kings, princes and rulers in communion with the Holy See to seek various dispensations, privileges and faculties which were at the gift of the papacy. One such faculty concerned the appointment of notaries.The Pope, for administrative convenience, frequently delegated the power to appoint public notaries to religious (usually Archbishops) and temporal leaders throughout the Holy Roman Empire. In England, the power to create notaries was vested in and exercised by the Archbishop of Canterbury under papal and imperial authority. In Ireland, public notaries were at various times appointed by the Archbishop of Canterbury and the Archbishop of Armagh. The position remained so until the Reformation.

There is archival evidence showing that public notaries, acting pursuant to papal and imperial authority, practised in England and in Ireland in the 13th century and it is reasonable to assume that notaries functioned here before that time.

After the Reformation, persons appointed to the office of public notary either in Great Britain or Ireland received the faculty by royal authority and appointments under faculty from the Pope and the emperor ceased.

In 1871, under the Matrimonial Causes and Marriage Law (Ireland) Amendment 1870, the jurisdiction previously exercised by the Archbishop of Armagh in the appointment of notaries was vested in and became exercisable by the Lord Chancellor of Ireland. In 1920, the power to appoint notaries public was transferred to the Lord Lieutenant of Ireland. The position in Ireland changed once again in 1924 following the establishment of the Irish Free State. Under the Courts of Justice Act, 1924 the jurisdiction over notaries public was transferred to the Chief Justice of the Irish Free State. In 1961, under the Courts (Supplemental Provisions) Act of that year, and the power to appoint notaries public became exercisable by the Chief Justice . This remains the position in the Republic of Ireland. In Northern Ireland, notaries public are appointed by the Lord Chief Justice.

The Notary in England

The Notary in America

Egypt

"A scribe's duties ranged from writing letters for townspeople, to recording
harvests, to keeping accounts for the Egyptian army.

Everything had to be noted down, from the number of bags of grain harvested
to the building supplies, work attendance, paid wages and gifts that followed
the deceased into the next world or were daily sacrificed in his honor by the
funerary priests."

Greece

The Greek word, hy-po'sta-sis, is used in the Bible book of Hebrews 11:1 and has been translated in various ways: “Faith is the assurance" (ESV), “Faith is the assured expectation (NWT)” “Faith is the title deed” (Moulton and Milligan)

"The word hy-po'sta-sis, translated "assurance" above, commonly appears in ancient papyrus business documents, conveying the idea that a covenant is an exchange of assurances which guarantees the future transfer of possessions described in the contract."

Moulton and Milligan: Report its use as a legal term, “the whole body of documents bearing on the ownership of a person’s property, deposited in archives, and forming the evidence of ownership.” They suggest the translation, “Faith is the title-deed of things hoped for.”

Rome

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."

The Roman Empire to the Middle Ages

The Roman Empire started to decline near the end of the second century, and by the year 500, the collapsewas complete. During the turmoil that followed, the Pope took the place of the Roman Emperors, and the Church took over many functions the government had neglected.

The Notarial Profession in England and Wales

A notary is defined by what he is and what he does. He is a qualified lawyer whose task it is to certify documents and transactions so that they can be effective in countries outside the United Kingdom

The notarial profession in England and Wales is best understood from a historical perspective. Until 1533 notaries were appointed on papal authority by the Archbishop of Canterbury. Following the break from Rome, appointments continued to be made by the Archbishop of Canterbury - but on the authority of the Crown. The Archbishop's jurisdiction was, and is, exercised through one of the oldest of the English court's - the Court of Faculties, now physically located at the Precinct adjoining Westminster Abbey in London. The Court is presided over by the Master of the Faculties who is the most senior ecclesiastical judge and commonly also a judge of the Supreme Court. Since 1801 the appointment and regulation of notaries has been underpinned by statutes enacted by Parliament.

The qualification, appointment and regulation of notaries

The current machinery for the education and appointment of notaries is established under rules made by the Master of the Faculties under powers given to him by the Courts and Legal Services Act 1990. Applicants must hold a university degree, or be qualified as solicitors or barristers (both such professions themselves requiring a university degree as a pre-condition for qualification in all but exceptional circumstances). Thereafter all applicants must obtain a Diploma in Notarial Practice after following a course of study prescribed by the rules and currently offered by the University of London. Once the Diploma is obtained, an applicant may petition the Court of Faculties for a 'Faculty' - a formal warrant under the seal of the Archbishop of Canterbury confirming his appointment and powers - enabling the applicant to practise as a notary subject to supervision by an experienced notary for the first two years.

There are two variations to this qualification pattern.

First, the diocesan bishops each have a legal officer (a solicitor or barrister) who, for historical reasons must also be a notary. These ecclesiastical notaries have no responsibilities beyond their work within the Church of England and are appointed by the Court of Faculties without any requirement for additional qualification or training.

Secondly, a notary may take additional qualifications in foreign law (as prescribed by the rules) and may then apply to become a freeman of the Worshipful Company of Scriveners (one of the City of London livery companies) which carries the right to practise as a 'scrivener notary'.

Once appointed, a notary is subject to the rules and disciplinary control exercised by the Master through the Court of Faculties. Scrivener notaries are subject also to regulation by the Worshipful Company of Scriveners.

The organisation of notaries

There are approximately 1,000 notaries in England and Wales. Of these, about 800 are members of the Notaries Society - the membership body which represents the interests of notaries. (Many of those who are not members of the Society are thought to practise in larger firms where one partner is a member, but the others do not feel that it is necessary to join as well.) The work of the Notaries Society is wide ranging but includes education, international representation and the development of professional standards. The Society is run by a Council of 23 members headed by the President and employs a Secretary to run the organisation.

The Secretary is Mr C.J. Vaughan and may be contacted at Old Church Chambers 23 Sandhill Road St James Northampton NN5 5LH.

Throughout England and Wales, all, save about 150 notaries, are also qualified as solicitors.. A further 30 scrivener notaries belong to the Society of Scrivener Notaries. The scrivener notaries are not solicitors - although there is no reason why this should not change over time - and, for historical reasons (which again may change with time), are concentrated within central London. Until new legislation came into force in 1999, only scrivener notaries were allowed to practise within central London and had acquired a distinctive international reputation and profile which culminated in their separate membership of the UINL. While many notaries may have knowledge of foreign languages or foreign jurisdictions, the scrivener notaries are all able to work in at least one language other than English and to have a detailed knowledge of at least one other legal system. This historical identity and additional qualification is recognised by their separate membership of the UK Notarial Forum. http://www.scrivener-notaries.org.uk/

Within England and Wales a notary is authorised to carry out all legal work other than the conduct of litigation. The authority of a notary is derived both from statute and from the Faculty granted to him by the Court of Faculties. The Faculty enables a notary to perform notarial acts in the public (or authentic) form recognised in civil law jurisdictions as well as in the private form which is accepted in England and Wales and other common law jurisdictions. A notarial Faculty states that full force and effect should be given to all instruments (including acts in both the public or private form) made by a notary. Notaries who are also solicitors carry out most of this domestic work (including litigation) in their capacity as solicitors and are subject to regulation by the Law Society.

This introduction to the notarial profession is not the place for a detailed study of notarial work. However there are distinctive aspects which formally emphasise the authority of notarial facts.

Until the eighteenth century notaries would authenticate their acts with an individual sign - often extremely elaborate. At the same time the government and corporations authenticated their transactions under seal. Governments still use seals for important transations, and their regular use by companies is only now going out of fashion. The use of seals to authenticate 'deeds' was the normal way of establishing their validity in the courts. Gradually, notaries adopted seals in substitution for their signs and by the nineteenth century it had become established that any notarial act should be affested by a notary's signature supported by his individual seal. All notaries now have such a distinctive seal - often illustrated with professional or historical signs. In addition notarial acts are prepared in established forms which can easily be understood and recognised wherever they are produced, and which may, in many jurisdictions, carry significant weight in courts and registries. Just as notaries certify documents and transactions so they in turn are certified by the legalisation process which is described elsewhere.

Members of the Notaries Society may also incorporate the badge of the society, in their documents and stationery.

A notarial certificate.

Where a notarial act is for use overseas, it is commonly a requirement that a notary's execution of the act is further witnessed by HM Government through the Foreign and Commonwealth Office who will add an 'Apostille' or certificate confirming the authenticity of the notary's signature and seal - both of which are registered with the Foreign and Commonwealth Office. The process is called 'legalisation' and may be further authenticated by the consulate of the receiving jurisdiction

Functions of a Notary

One of the most frequent notarial functions is the attestation or authentication of powers of attorney for use abroad. Many foreign legal systems require powers of attorney or factories and commissions to be executed before a notary.

A notary may also be called upon to certify the proper execution or signing of any sort of document that is to be used overseas and, if required, to confirm that is binding in English law. After identifying the person or persons concerned and the substance of any fact or event he may issue a certificate confirming such fact or event. This is frequently useful in relation to immigration or emigration matters or issues relating to status, marriage divorce or adoption and many like matters

Notaries are also required to note and draw protests in maritime matters and to protest bills of exchange. Other functions include the drawing for repayments of bonds of debenture, the completion of documentation for the registration of a company in different parts of the Commonwealth or overseas and sometimes for the entry of a person to overseas territories.

The administration of oaths has always been an important function of the notary.

The Notaries Society

As will be seen on other pages on this site the Society, formed in 1882, is the membership organisation of notaries in England and Wales. Among its many functions it maintains contact with the other notaries in the rest of the United Kingdom and Ireland through membership of the United Kingdom and Ireland Notarial Forum, throughout the rest of the world as a founder member of the World Organisation of Notaries (W.O.N.) and through its observer status with the International Union of Latin Notaries and through direct contact with other notarial associations. Despite differing traditions all notaries have shared concerns including the maintenance of trustworthy professional standards.,

Applications for assessment for a Declaration of Eligibility and Suitability to Adopt are made to the HSE or accredited body who carry out the assessment of the prospective adoptive parents. (PAPs)

Applicants complete an application form/statutory declaration in which they confirm their identity, marital status, the country from which they intend to adopt (for domestic adoptions this will be Ireland) and their residency. A social worker is assigned to the applicants and carries out their assessment for adoption. When the assessment is complete an Intercountry Adoption Assessment Report (also known as a Home Study Report) is written by the Assessing Social Worker. A recommendation is made by the Assessing Social Worker as to whether or not a Declaration of Eligibility and Suitability should be issued to the applicants. The recommendation will include the specifics of the child or children that the applicant/s is/are deemed suitable to adopt e.g. age range, health issues. This report is reviewed and signed by the Assessing Social Worker and by his or her Principal Social Worker or Team Leader. The report is forwarded to the Local Adoption Committee who considers the contents of the report and also makes a recommendation – one for each applicant. A copy of the report and the recommendations are sent to the Adoption Authority.

The application form/statutory declaration and the report and recommendations are reviewed by the Adoption Authority to ensure that all the appropriate documents have been submitted, all forms have been completed correctly and all criteria in respect of suitability have been met. Where all documents are in place and are correct and recommendations are positive the Adoption Authority may issue a Declaration of Eligibility and Suitability.

A Declaration of Eligibility and Suitability is granted for a period of 2 years from the date it is issued by the Adoption Authority. The Declaration of Eligibility and Suitability may include in it a statement relating to the age or state of health of a child whom the Authority considers that the applicant or applicants are suited to parent – this is based on information provided in the assessment report. Under current legislation, a year’s extension to the Declaration may be granted by the AAI.

The original Declaration of Eligibility and Suitability is sent to the applicants and a copy is sent to the Assessing Social worker for their records.

Any question that applicants have about their application should be directed to their assessing social worker.

Application to Country of Choice

As part of the assessment process, applicants will have decided on a country from which they wish to adopt a child. This choice will be made from the list of countries with whom the AAI engages for purposes of adoption. Irish applicants can only adopt from countries which have ratified the Hague Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoption1993 and among those, only from countries that will accept applications from Irish applicants.

Different countries will employ different systems for dealing with applications for intercountry adoption (ICA). However, these will typically include checking on the applicants’ eligibility (under the country’s expressed criteria). This may include the age of children available for ICA against the age of the child or children which the applicants are assessed for. In some countries, the age and marital status of the applicants will be a determining factor and in other countries, issues such as certain health conditions of the applicants can have a bearing on eligibility. It is best practice to research these issues before settling on a country of choice.

Process

The process involved in Intercountry adoption is governed by protocols laid down in both Irish legislation and more specifically in the Hague Convention.

Under the terms of the Convention the assessment report (also known as the home-study report) and the Declaration (collectively known under Hague as an Article 15 report) must be submitted to an accredited body or the Central Authority under Hague in the applicants’ country of choice. This must be done, either by the Irish Central Authority or a body accredited by the AAI for such purposes. (Please note that it is the policy of the Authority to invoke the services of accredited bodies for such purposes wherever possible).

Matching & Adoption process

Matching of a child with applicants is done in the country of origin of the child and is based on the suitability of the prospective adoptive parents (PAPs) and their capacities to parent the child. The overriding concern under the Hague Convention is the welfare of the child and the principles employed are aimed at finding the most suitable home for the child to be adopted. Therefore, in some countries, in the best interests of the child involved, some PAPs may wait longer than others to be matched with a child based on the particular needs of the children to be adopted.

When a match is made, a referral of the child is made either by the Central Authority or accredited body in the country of origin of the child. This is transmitted to either the AAI or an Irish based accredited body in the form of a child-study report. This is known under Hague as an Article 16 and will typically contain a background report on the child to be adopted, the birth-parents (if known), medical history of the child and proof that consents, where applicable were obtained in the required manner and format.

The AAI must consider all such referrals and make a determination, based on the capacities of the PAPs to provide for the needs of the particular child referred, taking into account the information contained in the Article 16 report and the PAPs’ assessment report.

As this is considered to be the most important stage in the adoption process, the AAI may employ the services of professionals, such as medical, social work or other disciplines to assist it in making a determination in these cases. If the Authority is not wholly satisfied that the particular match is in the best interests of the child involved, it may, without reference to the PAPs involved, return the referral to the country of origin.

However, if satisfied with the suitability of the match, the AAI will issue an Article 17 (consent to the placement of the child with the PAPs).The PAPs will be informed and following counselling where necessary, will be asked whether they wish to accept the referral. Having considered the child referred, the PAPs may wish to travel to the country of origin to see the child and to decide whether they wish to accept the child. Either way, the PAPs are entitled to change their minds up to the time the adoption is effected.

While most countries allow the PAPs to effect the adoption in the country of origin, there are some who may provide the PAPs with guardianship with a view to those PAPs obtaining a domestic adoption on their return to Ireland.

Some countries provide guardianship with a requirement that PAPs provide post placement reports for a prescribed period before finalising the adoption in the courts of the country of origin.

Post Adoption

The final step in the intercountry adoption process is the registration of the adoption. This is the formal legal recognition of the adoption by the Irish State through the AAI. The PAPs must submit an application for registration of the adoption link to the AAI within 3 months of re-entering the State following the adoption. The Authority can register the adoption in the Register of Intercountry Adoptions on the basis of an Article 23 Certificate received from the country of origin of the child. (Article 23 is a certificate of assurance from the country of origin that the adoption was effected in compliance with the Hague Convention.)

The Register of Intercountry Adoptions contains details of the adopted child and the adoptive parents and is a public document open to scrutiny by members of the public.

Certificates or copies of extracts from the Register may be obtained from the AAI for the appropriate fee and serve for all legal purposes as birth certificates for children adopted into Ireland by Irish residents.

Post-Placement, Post-Adoption Reports

Post-placement reports
Post-placement reports are required by some countries for a specified period from PAPs to whom guardianship of the child was granted and before a final adoption is effected. This is generally a legal requirement for adoption in these countries, and without which the adoption may not proceed.

Post-adoption reports
It is a condition of adoption in many countries that adopters provide information to the country of origin of the adopted child on that child’s ongoing condition and progress.

This information is typically provided in reports known as post-placement or post-adoption reports. These reports are normally completed by persons or bodies accredited by the AAI to provide such services to adopters and are usually compiled by a Social Worker.
The frequency and content of these reports is determined by the country of origin of the adopted child. Applicants wishing to adopt in a particular country will generally have signed an undertaking to provide these reports and such undertakings may be a pre-requisite to the acceptance of an application for adoption in many countries.

Under Irish legislation, the AAI cannot compel adopters to provide post adoption reports, as adoptions when complete confer upon the adopters the same rights, obligations and entitlements in respect of their families as on those whose families were formed by the addition of children born to them. The State does not have the right to interfere in the newly formed family unit in respect of requiring the adopters to provide any such reports. However, if adopters do not engage with and comply with the terms of their undertakings with regard to post-adoption reports, it may have consequences for the adopters should they seek to adopt again or, as is more common, it may have a negative affect on other prospective adopters who wish to adopt from the same country. Therefore, applicants are strongly urged to comply with the terms of the post-adoption reporting regime applicable in their cases.

PUBLIC NOTARIES (IRELAND) ACT 1821

CHAPTER XXXVI.

An Act for the better Regulation of the Public Notaries in Ireland. [28th May 1821.]

[Preamble.]

Public notaries to be duly bemitted, &c.

[1.] No person in Ireland shall act as a public notary, or use and exercise the office of a notary, or do any notarial act, unless such person shall have been duly sworn, admitted, and enrolled in manner herein-after directed, in the court wherein notaries have been accustomarily sworn, admitted, and enrolled.

No person shall be admitted unless he shall have served as an apprentice for seven years; nor, if bound after July 1, 1821, unless affidavit of certain particulars be made, which shall be filed in the proper court.

2. No person shall be sworn, admitted, and enrolled as a public notary, unless such person shall have been bound by contract in writing or by indenture of apprenticeship to serve as a clerk or apprentice for and during the space of not less than seven years to a public notary duly sworn, admitted, and enrolled, and for and during the said term of seven years shall have continued in such service; and also unless every such person, who shall be bound by contract in writing or indenture of apprenticeship to serve as a clerk or apprentice to any public notary, shall, within three months next after the date of every such contract or indenture of apprenticeship, cause an affidavit to be made and duly sworn by one of the subscribing witnesses, of the actual execution of every such contract or indenture of apprenticeship by such public notary and by the person so to be bound to serve as a clerk or apprentice as aforesaid; and in every such affidavit shall be specified the names of such public notary, and of such person so bound, and their places of abode respectively, together with the day of the date of such contract or indenture of apprenticeship; and every such affidavit shall be sworn and filed within the time aforesaid in the court where the public notary, to whom every such person respectively shall be bound as aforesaid, shall have been enrolled as a notary, with the proper officer or officers, or his or their respective deputy or deputies; who shall make or sign a memorandum of the day of filing every such affidavit on the back or at the bottom of such contract or indenture.

No person shall be admitted a public notary in the Court of Faculties before such affidavit is openly read in court.

3. No person, become bound as aforesaid, shall be admitted or enrolled a public notary in the Court of Faculties for admitting and enrolling public notaries, before such affidavit shall be produced and openly read in such court at the time of such person’s admission and enrolment.

[S. 4 rep. 36 & 37 Vict. c. 91.(S.L.R.)]

Officers for taking and filing affidavits.

5. The following persons shall be deemed and taken to be the proper officers for taking and filing such affidavits; (that is to say,) the lord archbishop of Armagh, his commissary or commissioners for the time being.

Officers filing affidavits to enter the substance thereof in a book.

Fee for filing 5s.

Book may be searched on paying 1s.

6. The officer filing such affidavits as aforesaid shall keep a book wherein shall be entered the substance of such affidavit, specifying the names and places of abode of every such public notary and clerk or person bound as aforesaid, and of the person making such affidavit, with the date of the contract or indenture of apprenticeship in such affidavit to be mentioned, and the days of swearing and filing every such affidavit respectively; and such officer shall be at liberty to take, at the time of filing every such affidavit, the sum of five shillings, and no more, as a recompence for his trouble in filing such affidavit; and which book shall and may be searched in office hours by any person or persons whomsoever, upon payment of one shilling for such search.

No public notary to have any apprentice except while actually practising.

7. No public notary shall take, have, or retain any clerk or apprentice, who shall become bound as aforesaid, after such public notary shall have discontinued or left off or during such time as he shall not actually practise or carry on the business of a public notary.

Apprentice to be actually employed seven years in the business.

8. Every person who shall become bound by contract in writing or indenture of apprenticeship to serve any public notary as hereby directed, shall, during the whole time and term of service to be specified in such contract or indenture of apprenticeship, or during the time and space of seven years thereof at least (if bound for a longer than seven years), continue and be actually employed by such public notary in the proper business, practice, or employment of a public notary.

In case of death of master, &c. service of residue of seven years with another notary shall be effectual.

9. Provided always, that if any such public notary, to or with whom any such person shall be bound, shall happen to die before the expiration of such term, or shall discontinue or leave off such his practice as aforesaid; or if such contract or indenture of apprenticeship shall, by mutual consent of the parties, be cancelled; or in case such clerk or apprentice shall be legally discharged before the expiration of such term; and such clerk or apprentice shall in any of the said cases be bound by another contract or contracts, indenture or indentures in writing, to serve, and shall accordingly serve, in manner herein-before mentioned, as clerk or apprentice had continued to serve as a clerk or apprentice for the said term of seven years to the same person to whom he was originally bound, so as an affidavit be duly made and filed of the execution of such second or other contract or contracts, within the time and in like manner as is herein-before directed concerning such original contract.

Persons before admission shall file affidavits that they have really served seven years.

10. Every person who shall become bound as clerk or apprentice as aforesaid, shall, before he be admitted and enrolled a public notary according to this Act, make before and file with the proper officer herein-before for that purpose mentioned, that he hath actually and really served and been employed by such practising public notary or notaries to whom he shall have been bound as aforesaid, during the whole term of seven years, according to the true intent and meaning of this Act.

If any notary shall act as such, or permit his name to be used for the profit of any person not entitled to act as a notary, he shall be struck off the roll.

Saving as to allowances to families of deceased partners.

11. If any public notary shall act as such, or permit or suffer his name to be in any manner used, for or on account or for the profit and benefit of any person or persons not entitled to act as a public notary, and complaint shall be made in a summary way to the Court of Faculties wherein he hath been admitted and enrolled, and proof made upon oath, to the satisfaction of the said court, that such notary hath offended therein as aforesaid, then and in such case every such notary so offending shall be struck off the roll of faculties, and be for ever after disabled from practising as a public notary or doing any notarial act; save and except as to any allowance or allowances, sum or sums of money, that are or shall be agreed to be made or paid to the windows or children of any deceased public notary or notaries by any surviving partner or partners of such deceased notary or notaries.

Penalty on person acting as notary without being admitted, 50l.

12. In case any person shall in his own name, or in the name of any other person, make, do, act, exercise, or execute and perform any act, matter, or thing whatsoever, in anywise appertaining or belonging to the office, function, and practise of a public notary, for or in expectation of any gain, fee, or reward, without being admitted and enrolled, every such person for every such offence shall forfeit and pay the sum of fifty pounds, to be sued for and recovered in manner herein-after mentioned.

[S. 13 rep. 36 & 37 Vict. c. 91. (S.L.R.)]

This Act not to extend to proctors in ecclesiastical courts, secretaries to bishops, &c.

14. Provided nevertheless, that nothing in this Act contained shall extend or be construed to extend to any proctor in any ecclesiastical court in Ireland, nor to any secretary or secretaries to any bishop or bishops merely practising as such secretary or secretaries, or to any other person or persons necessarily created a notary public for the purpose of holding or exercising any office or appointment, or occasionally performing any public duty or service under government, or created a public notary for practising within a limited district, and not as general practitioner or practitioners; any thing herein-before contained to the contrary notwithstanding: Provided always, that nothing herein contained shall exempt or be construed to exempt any proctor, being also a public notary, or any person created a public notary for practising within a limited district only, from the pains, penalties, forfeitures, and disabilities by this Act imposed upon any public notary who shall permit or suffer his name to be in any manner used for or on account or for the profit and benefit of any person or persons not entitled to act as a public notary.

[S. 15 rep. 36 & 37 Vict. c. 91. (S.L.R.)]

Recovery and application of penalties.

16. All pecuniary forfeitures and penalties imposed on any person or persons for offences committed against this Act shall and may be sued for and recovered in any of his Majesty’s courts of record at Dublin, by action or information, wherein the plaintiff, if he or she shall recover any penalty or penalties, shall recover the same for his or her own use, with full costs of suit.

Limitation of actions.

General issue.

Treble costs.

17. If any action or suit shall be brought or commenced for any thing done in pursuance of this Act, every such action or suit shall be commenced within three calendar months next after the fact committed, and not afterwards, and shall be laid and tried in the county wherein the cause of action shall have arisen, and not elsewhere; and the defendant or defendants in such action or suit shall and may plead the general issue, and give this Act and the special matter in evidence at any trial to be had thereupon, and that the same was done in pursuance and by the authority of this Act; and if the same shall appear to have been so done, or if any action or suit shall be brought after the time limited for bringing the same, or shall be laid in any other county or place than as aforesaid, then the jury shall find for the defendant or defendants; and upon such verdict, or if the plaintiff or plaintiffs shall be nonsuited, or suffer a discontinuance of his, her, or their action or suit after the defendant or defendants shall have appeared, or if upon demurrer judgment shall be given against the plaintiff or plaintiffs, the defendant or defendants shall have treble costs, and shall have such remedy for the same as any defendant or defendants hath or have for costs of suit in any other case by law [Rep. 5 & 6 Vict. c. 97. s. 2].

[S. 18 rep. 50 & 51 Vict. c. 59. (S.L.R.)]

What is a ship’s protest?

A ships protest, also known as a sea protest, is a document that is notarized and contains a statement from the captain of the ship regarding the conditions or events experienced during the voyage. The purpose of the creation of a ship’s protest is to prevent the owner or the operator of the vessel from facing liability for the damage incurred in rough seas to the cargo of the ship or from the liability for damage to other vessels if there was a collision at sea.

The reason that it is important to make a ship’s protest is that at later stage in court it may be denied the opportunity of having the ship’s log admitted into evidence if there is not a ships protest supporting the events on record. Also, if the full extent of damage only becomes apparent at some later stage, the captain can then extend the ships’s protest by attending the office of the notary to explain in further detail what has occurred.

Also, the existence of a ships protest can assist with the process of claiming against the insurance for the vessel in a collision or for the cargo as maritime insurance companies will often request some further form of documentation than the say so of the crew or captain before allowing a claim against an insurance policy in the event of the loss of cargo from a ship or the collision between two ships.

The first regional meeting of the e-APP for Europe Project, hosted by the Ministry of Justice of Finland, will be held in Helsinki (Finland) on Monday 14 February 2011 (as a one-day event). For more information on the e-APP (electronic Apostille Pilot Program) please see the Apostille Section and the e-APP website at http://www.e-app.info/.

This is the first of three regional meetings to be held in the context of the e-APP for Europe Project. The two additional meetings will take place at a later date in 2011, in Prague (Czech Republic) and Paris (France), respectively.

The Helsinki regional meeting will provide an update on the status of the e-APP for Europe Project, with special focus on the e-Register of Apostilles to be developed by Spain. The Spanish central e-Register of Apostilles may serve as a model for the implementation of this component of the e-APP in other European jurisdictions as well as in other Contracting States of the Apostille Convention. One of the main objectives of the regional meeting will be to promote the implementation of the e-APP in the northern States of the European Union.

In principle, the regional meeting is open to any interested Contracting State of the Apostille Convention or Member of the Hague Conference. However, since places are limited, and as this regional meeting is part of the e-APP for Europe Project (funded by the European Union), priority will be given to States of northern Europe and other EU Member States if need be.

The e-APP for Europe is a transnational e-justice / e-administration project designed to develop best practices in relation to the Apostille Convention by promoting the e-APP, in particular the use of e-Registers of Apostilles. This is a joint initiative of the Hague Conference on Private International Law and the Ministry of Justice of Spain in association with Finland, France and the Czech Republic, which is being funded by the European Commission under its "Civil Justice" programme. The 18-month project comprises three interrelated elements:

1.   The development and implementation of a central e-Register of Apostilles for all Competent Authorities in Spain
2.   The holding of three regional meetings across Europe to encourage all participating States to implement e-Registers
3.   The holding of the 6th International Forum on the e-APP (which took place in Madrid (Spain) on 29 and 30 June 2010). The Conclusions and Recommendations of the Forum are available on the "Apostille Section" of the Hague Conference website.

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