Part 1: Introduction

In 1237, the papal legate Otto recited in his Ordinances that, in England, ‘publicii notarii non existunt’.Footnote ¹ Of the 746 holding practising certificates in 2023, 690 were general notaries practising in England, 23 in Wales and 33 were scrivener notaries practising in London. Additionally, there are 12 ecclesiastical notaries.Footnote ² In the intervening years, numbers fluctuated: 18 admissions in the late 1580s, rising to 56 in 1801;Footnote ³ and only c. 500 in practice in 1924.Footnote ⁴ Because of the historical association of notaries with the work of the Church courts, these statistics mirror, in part, the changing role and procedures of those courts, but also changing regulatory requirements and economic circumstances.

Operating in a world which was largely illiterate, and where writing was unmechanised, the ancient and medieval notary’s function of producing authentic documents and records was fundamental to an ordered society regulated by what we now think of as the rule of law. In Continental Europe, their activities straddled ecclesiastical and secular courts, but the common law courts of England and Wales developed without their aid. The profession arrived at these shores in the service of the Church and became instrumental to the operation of its courts which regulated many areas of life, including matters such as defamation and wills which are now secular jurisdictions.Footnote ⁵ Today, the work of most English and Welsh notaries is secular, non-contentious and largely concerned with private law international transactions; but an important link with their ecclesiastical past survives because they are admitted to practice, regulated and disciplined by the Master of the Archbishop of Canterbury’s Court of Faculties (‘Master’).

Notaries claim to be the oldest legal profession,Footnote ⁶ yet their absence from the common law system of England and Wales means that they are vastly outnumbered by solicitors and barristers and little known. The Thomas Commission’s single reference to them sums up the prevailing attitude: ‘In addition to solicitors and barristers, Chartered Legal Executives and six other professions are regulated in the legal services sector … Notaries … In terms of their impact on the Welsh economy, these niche regulated professions do not rank highly’.Footnote ⁷

Likewise, Archbishop Carey quipped, in a speech to the Notaries’ Society, ‘I have to confess that, twelve months ago, I didn’t know the Archbishop of Canterbury had any part in the creation of notaries. Indeed, if I’m honest, I would have been hard-pressed to say what a notary was’.Footnote ⁸ Halsbury’s defines a ‘public notary’ as:

The numbers,Footnote ¹⁰ position and reputation of notaries in other parts of the world, particularly countries with a civil legal code, are different,Footnote ¹¹ yet they share common legal ancestry, significantly shaped by the canonists of Bologna and practice in the courts of the Western Church. The notaries public of England, Wales, the Bailiwicks of Jersey and Guernsey, Gibraltar and parts of the CommonwealthFootnote ¹² aloneFootnote ¹³ retain formal links with the Church via the Faculty Office of the Archbishop of Canterbury, but their story is, perhaps, obscure to many modern canon lawyers.

The place of notaries in the English and Welsh legal system is somewhat mysterious not only to domestic observers but also to the profession’s civil jurisdiction counterparts, known as ‘Latin notaries’. The first conference in a dialogue initiated by the International Union of Notaries (‘UINL’) between civil and common law systems recently took place in London.Footnote ¹⁴ Fascination with the English situation is not new, as Otto’s observation in his Constitutions indicates; and in the 1980s, the Italian National Council of Notaries commissioned a history of the notarial profession throughout Europe, including a study, by Brooks,Footnote ¹⁵ Helmholz and Stein, of post-Reformation English notaries up to 1989, in which the authors stated, ‘The notary public features only slightly in historical accounts of English law and institutions’.Footnote ¹⁶

Developing the theme, Helmholz suggested that, ‘A fair assessment of the place of notaries public in England is impossible without a brief examination of the place of the Church, and in particular the courts of the Church, in English life until the nineteenth century’.Footnote ¹⁷ Phillimore made a similar observation in 1895:

After an account of the origins of the notarial profession, this article surveys its association with the English Church to the present day. Reference is made to Faculty Office archives and to the Master’s overseas jurisdictions which have not been considered by previous commentators. The focus is on admission, regulation and employment of notaries by emanations of the pre- and post-Reformation Church, particularly her courts, together with consideration of the notary as the holder of an ‘office’, both in the ecclesiastical sphere and more generally. Some comparisons will be drawn between the scope and status of notarial acts in England and Wales and the approach of civil law jurisdictions. Despite their shared origins, such comparisons reveal important differences.

The significance for canon lawyers of this branch of legal practice will be considered – and vice versa. Tracing the 800-year association between Church and notarial profession in England and Wales helps to illuminate the relationship between pre- and post-Reformation English ecclesiastical law, the constitutional character of the English Reformation settlement and contemporary understanding of professional regulation.

Part 2: Origins of Notaries Public, their development and role in the pre-reformation English church

Officials called ‘notarii’ fulfilled various functions in Roman law and administration from about the first century BCE. Thought to have been practitioners of a system of shorthand ‘notae’, ascribed by PlutarchFootnote ¹⁹ to Cicero, notarii became associated with Roman courts and public life. They operated both as court registrars and in the non-contentious legal sphere, drawing up deeds and similar private documentation. Such documents would then be sealed in the court, so that they became public and authentic ‘acta’.Footnote ²⁰ Others, known as ‘tabelliones’Footnote ²¹ were available for hire, but were regulated by law. Their duties solely comprised preparing private documents for individuals, such as wills and property transfers, which would be signed by the parties, attested by witnesses and then become binding; these documents were known in Roman law as ‘instrumenta publice confecta’.Footnote ²² They were accorded a higher status of authenticity than ‘instrumenta privata’Footnote ²³ but not full probative force without a further process in court. After that, documents became ‘instrumenta publica’,Footnote ²⁴ a status otherwise only enjoyed by documents issued by public authorities or archives, such as court ‘acta’. Over time, it became possible to deposit these documents directly in public archives.

Constantine made use of notarii within the imperial chancery, often employing them in diplomatic missions in addition to their duties of issuing public documents. Their ubiquity and significance are demonstrated in the Novels of Justinian,Footnote ²⁵ which record an enactment of 537 compelling notaries, on pain of forfeiting their ‘stationes’Footnote ²⁶ , to be present at the execution of legal instruments; to prevent forgery, a protocolFootnote ²⁷ must appear on the same sheet as the instrument, the papyrus bearing the mark of ‘Our Most Glorious Count of the Imperial Largesses’ and the date of its manufacture.

The Rule’s Preface describes the mischief to which it was directed: in one case, an illiterate woman had employed a notary to compose an instrument; she subsequently disputed it in court, where it emerged that the notary had not undertaken the work himself but delegated it to a clerk, who had not been present during the dictation process; the witnesses’ recollections were unclear and the court was left without reliable evidence.Footnote ²⁸

Justinian’s requirements continue, largely unchanged, to constitute the essential parts of a notarial act. The leading modern practitioner’s textbook, Brooke’s Notary, describes these elements as:

A ‘notarial act’ is defined in the Master’s Notaries Practice Rules 2019 as ‘any act that has validity by virtue only of its preparation, performance, authentication, attestation or verification by a notary, and includes any such act carried out by electronic means’.Footnote ³⁰ It is a self-authenticating document.Footnote ³¹ Notarial acts may be in public or private form. A public ‘act’ or ‘instrument’ recites the appearance before the notary of the parties and other particulars, concluding with a statement (‘eschatocol’)Footnote ³² that the instrument was read to the parties and sealed in the notary’s presence, whereupon the notary signs and seals the instrument. An act in private form authenticates some document, not usually produced by the notary, but certified by him. The same duties arise in terms of seeing and hearing the parties, ensuring the absence of violence or fraud and, these days, that the transaction is not tainted by money laundering.Footnote ³³

The notary’s statutory oath, substantially unamended since 1843, enshrines Justinian’s principles of fidelity, veracity, accuracy and honesty:

The treatment of these principles in the training and practice of contemporary notaries will be outlined.Footnote ³⁶ The statutory term ‘office’ reflects the nature and effect of the work, recognised since Roman times as having a public character. Halsbury’s, Phillimore and Ayliffe describe the role as an office and the first (1839) edition of Brooke’s Notary,Footnote ³⁷ was entitled Treatise on the Office and Practice of a Notary of England, but there are distinctions between the understanding of notarial practice in England and Wales and in the Latin jurisdictions, which will be considered.Footnote ³⁸

Notarii and tabelliones did not wholly vanish on the fall of the Roman Empire in the fifth century. Helmholz observes, ‘legal culture had not disappeared from Italy to the same extent that it had from northern Europe. A notarial culture and schools where law was taught kept the flame of Roman law alive in the south’.Footnote ³⁹

Until the ninth century, officers of the German and Frankish counts’ and palatinate courts performed functions resembling those of Roman notarii, initially being appointed by the territorial ruler and exercising geographically limited jurisdiction.Footnote ⁴⁰ Early in the ninth century, Charlemagne appointed commissioners who travelled the Empire, reforming court practice; one of their functions was to appoint ‘royal notaries’ to serve secular and church dignitaries.Footnote ⁴¹ Notaries were common in Italian city states.Footnote ⁴²

Towards the end of the eleventh century, Justinian’s Corpus Juris Civilis was re-discovered, accelerating study of Roman law and the associated development of canon law.Footnote ⁴³ The interconnection was significant and canon law has been described as ‘Christian theology structured by Roman law, and brought to bear on the institutional necessities of the Church’.Footnote ⁴⁴ From the early 1100s, this work was centred on the School of Bologna, alongside resurgence of interest in classical rhetoric, the study or art of speaking, reasoning and the expression of thought, particularly writing.Footnote ⁴⁵ Accuracy of written records was recognised as integral to the creation of a rational system of law. In 1251, Rolandino de PassaggeriFootnote ⁴⁶ established a faculty of ‘notaria’Footnote ⁴⁷ at Bologna where he taught and published theoretical and practical works culminating in his ‘Summa totius Artis Notariae’ (1295–6)Footnote ⁴⁸ which became the foundational text. The faculty expounded the principle that publica fides Footnote ⁴⁹ be given to notarial acts, but only in respect of matters seen and heard by the notary – visa et audita suis sensibus – transmitting Justinian’s decree into medieval practice. Contemporary notaries are grappling with the application of this principle in the post-COVID world. The Industry Working Group Interim Report on Electronic Execution of Documents acknowledges that ‘personal appearance has been a fundamental characteristic of notarial practice for centuries’, while noting the trial of an electronic signature platform by the profession in England.Footnote ⁵⁰

By the twelfth century, the German emperors, claiming to have inherited Roman imperial authority, appointed notaries who were licensed to practise anywhere. Similarly, popes, from the end of the eleventh century, appointed notaries by faculty to practise ‘ubique terrarum’.Footnote ⁵¹ This development marked a shift from customary or local legal systems to one which was centralised and comprehensive. Durand notedFootnote ⁵² in c. 1271 that ‘a notary public (tabellio) appointed by the emperor or pope or by someone to whom they have granted this by special privilege, may perform their office and draw up instruments anywhere … even in England … not only in lands specially subject to the emperor or pope’.

In 1167/9 Pope Alexander III had addressed a decretal epistle, ‘Meminimus’, to Roger, Bishop of Worcester. It included the following ruling: ‘Authentic writings, if the subscribing witnesses have died (if not drawn up by public hand, in such manner as they appear to be public, or not bearing an authentic seal by which they may be proved) do not appear to us to carry any weight of certainty’.Footnote ⁵³

This ruling was included in many English collections of decretals and eventually passed into the Liber Extra (1234).Footnote ⁵⁴ Cheney comments that the reason why employment of a notary public who wrote ‘sub manu publica’Footnote ⁵⁵ was not the exclusive means of authentication was that, as in other parts of northern Europe, customary law still prevailed.Footnote ⁵⁶ Brundage, however, notes the importance of this decretal in establishing the ‘presumption of authenticity’ when documents have been sealed by a notaryFootnote ⁵⁷ and Brooke’s Notary describes it as ‘the canonical basis for the doctrines formulated by the School of Bologna’.Footnote ⁵⁸ This principle is of continuing importance.Footnote ⁵⁹

The significance and potential of canon law were confirmed by Pope Innocent III at the Fourth Lateran Council (‘Lateran IV’) (1215). Landau links development of the legal principle of rationality in the latter half of the twelfth century and the consequent importance of documentary proof with the rise in importance of notaries.Footnote ⁶⁰ Of particular relevance was Canon 38 ‘De scribendis actis, ut probari possint’Footnote ⁶¹ which provided:

This requirement was an important safeguard because it was the practice for ecclesiastical judges to hear witnesses in private.Footnote ⁶³ The reference to a ‘public official’ is to a notary public. Canon 38 was widely disseminated via Decretal X.2.19.11 ‘Quoniam contra falsam’ in the Liber Extra Footnote ⁶⁴ so this provision and, hence, the work of notaries, was to be of fundamental importance to the practice and development of canon law as a rational system of justice.

Despite – or perhaps because of – the significance of the conciliar Canon 38 of 1215 on the Continent, Otto’s Constitutions of 1237 noted that ‘tabellionum usus in regno Anglie non habetur’.Footnote ⁶⁵ Whilst papal and imperial notaries were widespread in Continental Europe, especially Italy and France, proof in the common law courts was achieved by other means, with an emphasis on deeds and oral evidence, as opposed to publicly notarised acts and depositions.Footnote ⁶⁶ Acknowledging Smith, who highlighted the dependence of these Constitutions on Lateran IV, Williamson described the procedural statutes within the collection as the means by which ‘Otto was restating the canon law to meet particularly English needs’.Footnote ⁶⁷ Accepting the absence of notaries, Otto instead stressed the importance of all echelons of the judicial hierarchy having seals; not just archbishops and bishops, but also lowly archdeacons, rural deans and their officers.Footnote ⁶⁸ Seemingly, Rome was prepared to be pragmatic about Canon 38, given local circumstances.

Things appeared to be changing by 1268, when the papal legate OttobuonoFootnote ⁶⁹ drew up his constitutions for the English Church. Rather than recording their absence, the possibility of notaries being available was assumed in his requirements for proving the vacancy of a benefice: by production of a document bearing one or more authentic seals, or a public instrument, or attested to by trustworthy witnesses.Footnote ⁷⁰ Whether the notary public had, by this time, become an established part of the legal landscape or was an occasional visitor from the Mediterranean is unclear; the choice of proofs might suggest the latter.

A major development occurred in 1279, with the appointment, under Pope Nicholas IV, of John Pecham as Archbishop of Canterbury. He brought with him an Italian notary public, Johannes quondam Jacobi de Bononia.Footnote ⁷¹ Pecham obtained a papal faculty before he came to England to appoint within a year three suitable men to the office of notary public. Cheney deduces that he must have appointed some because in 1279 and 1280, lists of witnesses in excommunications included several notaries public. In about 1289, Johannes produced, for the instruction of English clerks, who were ignorant of the ‘ars notaria’,Footnote ⁷² a ‘Summa de his quae in foro ecclesiasticao coram quibuscunque iudicibus occurrant notariis conscribenda’,Footnote ⁷³ which was widely circulated in England. By 1292, fifteen more papal faculties had been granted.Footnote ⁷⁴ In the fourteenth century, notaries were regularly employed by bishops on a permanent footing and there were petitions to the Pope requesting more faculties; notaries were instrumental in episcopal visitations, adjudicating ecclesiastical property disputes and as bishops’ registrars. In 1320, Edward II issued a writ forbidding imperial notaries from practising in England but, at the same time, there is evidence of faculties being sought for the appointment of further papal notaries by the Archbishop of Canterbury.Footnote ⁷⁵ The issue was secular, not ecclesiastical authority.Footnote ⁷⁶

Whilst Archbishop Winchelsey’s 1295 statutes for the Court of Arches do not suggest that notaries were important, Archbishop Stratford’s 1345 statutes assumed that the Court Registrar would be a notary public because of his role and function in producing public documents: ‘ut possit idem registrarius notarius publicus super his si opus fuerit facere publica documenta’.Footnote ⁷⁷ Likewise, by this date in the Arches Court at least, other examiners, who wrote depositions, interrogatories and other litigation documents, had to be notaries public.Footnote ⁷⁸ Helmholz records an appeal to the York Provincial Court in 1378 in which the sole ground was that the judge below did not have the notary public or other ‘two suitable men’ required by Canon 38/Decretal ‘Quoniam contra falsam’,Footnote ⁷⁹ rendering the decision null.Footnote ⁸⁰ The incident is interesting in showing that the rule was sufficiently well established to found the argument but not universally observed, at least in the Northern Province, indicating a shortage of notaries.

Cheney contrasts the wording of the papal preamble to faculties, which articulated the objective of ensuring that contracts were upheld, with English petitions for faculties of the thirteenth century, in which bishops referred to the role of notaries in court proceedings, which is where, he posits, notaries made their greatest contribution to ecclesiastical administration.Footnote ⁸¹ He attributes the contrast to the common law jurisdiction over contractual disputes, where notarial acts were not regarded as probative, as opposed to practice in the church courts, where they were. The secular courts dealt with many such disputes, but there were gaps which, on occasions, the church courts could fill.Footnote ⁸² The UINL describes the fundamental principles of the contemporary Latin type notarial system in terms reminiscent of the medieval papal preamble:

Gradually, common law jurisdiction and remedies expanded and the Church’s contractual jurisdiction fell into disuse by the 1530s. Whilst this jurisdictional shift was not, in itself, out of step with the Continent,Footnote ⁸⁴ it was more significant for notaries in England due to their absence from the common law courts. As a result, the scope for notaries in transactional work became confined to the other English ecclesiastical and civil law jurisdictions – principally probate, matrimonial and admiralty.Footnote ⁸⁵ As will be seen,Footnote ⁸⁶ secularisation of these jurisdictions in the nineteenth century had a profound effect on notaries, leaving them with a smaller field of practice than their Continental colleagues.Footnote ⁸⁷ The seeds of some of the differences which characterise the respective roles of notaries in civil and common law jurisdictionsFootnote ⁸⁸ were therefore sown in the jurisprudence and practice of pre-Reformation English ecclesiastical and common law courts. Notaries continued, however, to enjoy prominence in the ecclesiastical courts.Footnote ⁸⁹

Part 3: Pre-reformation church courts and their personnel

As today, members of several different professions carried out particular duties in the church courts. Their roles grew out of Roman practice; professionalisation of the ecclesiastical courts was occurring at around the same time as advances in the study and development of canon law at Bologna. Otto’s Constitutions (1237), for example, include uncomplimentary references to professional advocates.Footnote ⁹⁰

Medieval church judges and other officers were clergy.Footnote ⁹¹ The lowest church courts were those of archdeacons and rural deans. Diocesan courts of consistory were presided over by the Bishop or his Commissary, from which appeals lay to the provincial courts of the Archbishops: the Courts of Arches and Chancery. The ultimate court of appeal for western Christendom was the papal curia in Rome. These courts had wide ranging jurisdiction, covering marriage, sexual impropriety, defamation, probate and some contractual claims, as well as heresy and clergy discipline.

Advocates presented written and oral arguments, especially in the provincial appeal courts and papal curia. They normally held doctoratesFootnote ⁹² in canon and sometimes also civil law. They were generally admitted to practice by Archbishop’s mandate in one or other of the Provincial Courts.Footnote ⁹³

Proctors sometimes, but not invariably, had law degrees. They appeared in the lower courts, preparing documents, speaking as proxies on their clients’ behalf, effectively taking on advocacy.Footnote ⁹⁴ Proctors were admitted to practice in particular courts and their numbers were usually limited.Footnote ⁹⁵

In the thirteenth and fourteenth centuries, notaries were principally unmarried men in minor clerical orders, evidenced by the papal letter of appointment.Footnote ⁹⁶ There were exceptions, including one of Pecham’s first notaries, John de Beccles.Footnote ⁹⁷ The tendency towards lay notaries increased in the fifteenth century.Footnote ⁹⁸ Notaries performed various tasks in ecclesiastical courts, all of which reflected the public nature of their office. They took depositions from witnesses, which were then admitted without the need for oral evidence or further proof, and made official copies – ‘exemplifications’. Notarial skill in making accurate records was required for recording ‘acts of court’ – a task for the registrar or ‘register’.Footnote ⁹⁹ This function was formalised by Canon 38 of Lateran IV, but it appears to have taken at least a century for that rule to take full hold in England.Footnote ¹⁰⁰

Officials, variously known as ‘apparitors’ or ‘summoners/sumners’, were responsible for ensuring that parties attended court.Footnote ¹⁰¹

Part 4: Scriveners

On 26 September 1373, the Lord Mayor of London and Aldermen made an ordinance on the petition of ‘the reputable men, the Common Writers of the Court Letter of the City’. This ordinance regulated the writers of wills, charters and other things by requiring:

These provisions created a monopoly on legal writing within the City which was to last for more than 600 years.Footnote ¹⁰³ During that period, it was necessary, in order to practise as a notary in the relevant parts of London, to pass the Company’s examinations and be accepted by its Court. To this day, whilst it is possible to practise as a general notary in London without being a member of the Company, general notaries who wish to call themselves ‘scrivener notaries’ must undergo a further period of study, pass further examinations and undertake supervised training; the requirements are stringent, necessitating fluency in at least two foreign languages and the legal systems of their related jurisdictions.Footnote ¹⁰⁴

BrooksFootnote ¹⁰⁵ discerns notarial influence in the formation of the Company of Scriveners and development of its practices, although it has never been comprised entirely of notaries.Footnote ¹⁰⁶ According to its own history, the first admission of notary members was in 1392, when new ordinances were made coinciding with the issuing of notarial faculties to laymen by the Archbishop of Canterbury, acting as papal legate;Footnote ¹⁰⁷ John Cossier and Martine Seamen, notaries public, are named as wardens of the Company in that year.Footnote ¹⁰⁸ Brooke’s Notary similarly observes that it was in the reign of Richard IIFootnote ¹⁰⁹ that notaries, who had hitherto generally been clerks in holy orders, began also to be laymen. Lay notaries occupied themselves with secular business which clerks were no longer allowed to undertake, opening up a division between ecclesiastical and secular work.Footnote ¹¹⁰ Brooks traces the development of notarial practice, especially in the rapidly expanding international trading centre of late medieval/early modern London. Since the High Court of Admiralty operated by civil, rather than common law, rules and procedure, notarial acts were accorded probative status in shipping disputes. It is therefore unsurprising that international notarial work flourished.Footnote ¹¹¹

Part 5: The Notary public and the English reformation – continuity and change

Part 6: Statutory interventions: 1801–2007

The legal history of notaries and the Faculty Office from the early nineteenth to the twenty-first century could be characterised as a struggle between medievalism and modernity: ecclesiastical versus secular power, monopoly versus competition, tradition versus professionalisation. As such, it forms part of the constitutional history of the established Church of England and should be considered alongside better known developments such as transfer of the defamation, family and probate jurisdictions to the secular courts in the 1850s and further reform of the higher courts between 1873 and 1876.Footnote ¹⁸⁶ Reports in Hansard, supplemented by unpublished contemporaneous materials in Lambeth Palace Library, testify to the intensity of feeling generated by the nineteenth century debates. Unpublished Faculty Office papers and personal recollections continue the story to 2007 and beyond. Stein records the public Parliamentary history to 1989, but the archival material has not previously been discussed.

The Public Notaries Act 1801Footnote ¹⁸⁷ provided that no person in England ‘shall be created to act as a Publick 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 inrolled in the court wherein notaries have been accustomarily sworn, admitted and inrolled’, recognising the status and preserving the jurisdiction of the Court of Faculties. These elements remain on the statute book, despite some subsequent repeals. The Preamble recited that it was ‘expedient, for the better prevention of illiterate and inexperienced persons being created to act as or admitted to the faculty of publick notaries, that the said faculty should be regulated in England’.Footnote ¹⁸⁸

This measure is the first expression of secular public interest in the notarial profession. As originally enacted, it required seven years’ apprenticeship to a notary prior to appointment and imposed penalties for dishonesty in relation to appointment and qualifications.Footnote ¹⁸⁹ The scriveners’ London monopoly was preserved,Footnote ¹⁹⁰ but the Act did not apply to notaries practising exclusively in the ecclesiastical courts or as episcopal secretaries, so long as they did not engage in general practice.Footnote ¹⁹¹

The seven-year apprenticeship deterred those wishing to practise outside London, as there was insufficient work to support a specialist practice and the result was a shortage of notaries beyond the capital. A Bill of 1808 proposed that practising attorneys and solicitors be admitted as public notaries ‘in all parts of England’ apart from the City of London and a three-mile radius thereof. The Bill failed but the underlying problem, which was becoming acute as Britain’s economy boomed and notaries were required to deal with mercantile and international transactions,Footnote ¹⁹² did not go away. The strict interpretation of the statutory requirements approved in R v Scriveners’ Company (1830) compounded matters. The Scriveners’ Company had refused to admit a man who, for seven years, had earned his living as a banker’s clerk until 5 pm, then worked for a notary in the evenings, dealing with mercantile documents. Lord Tenterden CJ held that his apprenticeship had been insufficient, as he had not gained experience of all areas of notarial work.Footnote ¹⁹³

A further Bill was prepared. An unpublished document, ‘Arguments for the Bill’Footnote ¹⁹⁴ complained that the 1801 statute had been ‘intended for the protection of the public, not to create a monopoly’, adding that it had failed:

The issue of geographical coverage in the face of small returns remains a conundrum for contemporary regulators, as the MasterFootnote ¹⁹⁵ recognised in her 2023 speech to the Notaries’ Society.

After much revision in Parliament,Footnote ¹⁹⁶ the Bill succeeded. The Public Notaries Act 1833 effected a compromise by introducing the concept of a ‘district notary’ – a practising attorney, solicitor or proctor who could be admitted as a notary public without satisfying the requirements of the 1801 Act, but only in such area – including the imperial territories – as the Master might specify, on being satisfied that there was a shortage of notaries there.Footnote ¹⁹⁷ Any district notary practising beyond his authorised area could be permanently struck off the Roll of Faculties by the Court of Faculties, upon complaint being made ‘in a summary Way’.Footnote ¹⁹⁸ An exception, extending to the Cities of London and Westminster, the Borough of Southwark and a circuit of 10 miles from the Royal Exchange,Footnote ¹⁹⁹ succeeded in removing the objections of scrivener notaries by reserving to them the lucrative London international work.

Not everyone was happy: a notary who had ‘hitherto maintained a wife and family respectably’ while he was the only one in a ‘sea-port town’, now faced ‘ruin and beggary’ in the face of competition from ten attorneys, newly admitted as district notaries.Footnote ²⁰⁰ The Master, Lord Stowell, responding to such concerns, instituted a procedure of giving notice of applications to the existing notaries in the district.Footnote ²⁰¹ His successor, Sir John Nicholl, supplemented this arrangement in 1838, making provision for the application to be stayed while any objecting notary who had entered a caveat might submit a supporting statement, for further statements and, if necessary, their verification ‘by the affidavits of the magistrates, bankers, merchants, or other principal inhabitants’.Footnote ²⁰²

There were still disagreements regarding apprenticeship. The case of R. v Page Footnote ²⁰³ raised the problem of validity of the common provincial practice of ‘double articles’. The Scriveners’ Company succeeded, on appeal, in their argument that an articled clerk who had divided his time between his father’s practice as attorney and notary in the same office in Scarborough should not be admitted to the Scriveners’ Company so that he could seek a faculty to practise as a notary public in London, although the Faculty Office was prepared to grant him a faculty to practise elsewhere. The decision sparked concern: unpublished Faculty Office files contain a memorandum from the Liverpool Notaries, seeking a change in the lawFootnote ²⁰⁴ together with an unsigned note, apparently drafted within the Office, setting out the reasons behind making an application to Parliament, stating that the decision in Page had caused ‘great alarm in the profession’. The Attorney GeneralFootnote ²⁰⁵ supported the change and the Office also promoted modernisation of the ‘the ancient oath being ill adapted to the present business of Public Notary’.

Eventually, after another failed Bill,Footnote ²⁰⁶ the Public Notaries Act 1843Footnote ²⁰⁷ provided for five, rather than seven years’ articles for general notaries, while seven years remained the qualification period for scrivener notaries.Footnote ²⁰⁸ ‘Double articles’ were declared to be validFootnote ²⁰⁹ and the Master’s jurisdiction was affirmed and extended, by granting express power to make rules requiring ‘testimonials, certificates, or proofs as to the character, integrity, ability, and competency’ of applicants ‘in England or in any of Her Majesty’s Foreign Territories, Colonies, Settlements, Dominions, Forts, Factories, or Possessions’. Supervision by the secular court was preserved but modernised as a right of appeal to the Lord Chancellor against refusal to admit.Footnote ²¹⁰ Parts of this Act remain in force, including the form of notary’s oath.Footnote ²¹¹ The main difference between the ancient and statutory oaths is the omission of references to making public instruments and entering them in a register.Footnote ²¹² The 1833 and 1843 Acts remain the statutory basis for admission requirements in the Master’s overseas jurisdictions,Footnote ²¹³ although, apart from the Channel Islands and Gibraltar, the Church of England has no formal status in any of them.

Legislation of the second half of the nineteenth century brought profound changes to the courts of England and Wales, at a time when other aspects of public life were being modernised.Footnote ²¹⁴ Defamation, wills and marriage were transferred to new secular courts in the 1850sFootnote ²¹⁵ and the Judicature Acts 1873–1875 set up a single unified High Court which also replaced the former Admiralty courts, where the civilian doctors, proctors and notaries had practised to the exclusion of barristers and solicitors. The Public Worship Regulation Act 1874, as part of wider reforms, required the offices of Dean of the Arches and Master to be held by the same person.Footnote ²¹⁶

Attorneys, proctors and solicitors were amalgamated into one profession – solicitors – regulated by the Incorporated Law Society. It seemed to some, in this streamlined modern world, that the remaining legal professions should be fused. The Inns of Court fended off the idea but notaries were more vulnerable and, in 1884, the Law Society promoted a Bill which would have, effectively, merged solicitors and notaries. In the House of Lords, the voices of tradition battled against those of modernity. Lord Aberdare argued that the proposal was ‘the natural and logical outcome’ of the recent reorganisation of legal administration and tackled the relationship to the Church:

He cited the lack of notaries in ports and commercial centres outside London; whilst there were 33 scriveners in the capital, there were only 12 ‘notaries proper’ to serve the rest of the country and these were appointed ‘without much examination’.Footnote ²¹⁷ The Earl of Milltown, opposing, noted the absence of public demand for the measure and lack of compensation for notaries. He highlighted the ‘exhaustive examination’ and skill of London notaries and the usefulness of notaries generally to ‘the commercial public’, continuing:

The Lord Chancellor described the control of the Scriveners’ Company as a ‘singular anomaly’ adding, of the Master of Faculties:

Lord Cairns countered that the arrangements had not done any harm. He cited mercantile opposition to the Bill, arguing that it was ‘impracticable’ that solicitors could undertake notarial duties, ‘requiring, as they did, the most accurate and intimate knowledge of foreign languages, foreign law, and of commercial matters …’.

The Bill failed and the status quo continued in England and the ‘colonies’ for over a century. The Welsh Church Act 1914, however, transferred appointments in Wales of district notaries who were to practise solely in ‘Wales and Monmouthshire’ to the Lord Chancellor, who delegated the function to the Clerk of the Crown in Chancery;Footnote ²¹⁸ thus, these powers were not ‘lawfully transferable’ at 30 March 1920 and did not pass to the Archbishop of Wales.Footnote ²¹⁹

In the 1970s,Footnote ²²⁰ scandals involving solicitors prompted Harold Wilson to appoint a Royal Commission which focused on solicitors and barristers but also considered liberalising conveyancing and probate, which was relevant to notaries. Apparently, Wilson initially wanted to repeal the 1533 Act, while Thatcher favoured merger of notaries and solicitors, but Master Sir John Owen persuaded her Lord Chancellor, Hailsham, otherwise.Footnote ²²¹ The eventual outcome was the Courts and Public Services Act 1990. S.57 dealt exclusively with notaries, ensuring that the independent profession survived. The Faculty Office became involved in the detailed drafting. There was dialogue with the Attorney General and some competition with the Law Society. The Lord Chancellor’s Department was content to give the Office greater autonomy because they were ‘firmly of the view that the Faculty Office is a Court and that it is part of the basic constitution of this country presided over by a senior judge’.Footnote ²²²

Section 57 repealed the nineteenth century provisions requiring apprenticeships and abolished district notaries, returning regulation of all Welsh notaries to the Faculty Office.Footnote ²²³ The Master received extensive powers with regard to education and training, regulating conduct and discipline and the keeping of records and accounts, but the monopoly on admission of scriveners within London remained with the Company. Section 5 of the 1533 Act was repealed, removing the necessity for registering notarial faculties with the Clerk of the Crown in Chancery; presumably it was this provision to which the comments of the Lord Chancellor’s Department applied, recognising the constitutional status of the Court of Faculties and its judge, although ecclesiastical in nature. As will be seen in Part 10, this recognition is of practical significance to English and Welsh notaries.

The Access to Justice Act 1999Footnote ²²⁴ abolished the exclusive jurisdiction of the Scriveners’ Company in the City of London and environs, Lord Goodhart describing it as ‘the last remnant of mediaeval guild monopolies’.Footnote ²²⁵ General notaries may now practise there, but the title ‘scrivener notary’ is reserved to those who have passed the Scriveners’ examinations – additional papers in two foreign languages and the law of at least two foreign jurisdictions.Footnote ²²⁶

The Government was still not satisfied with the organisation and regulation of legal services. In 2003, Sir David Clementi was appointed to consider the issues and make recommendations.Footnote ²²⁷ He criticised the disparate nature of regulation and lack of principles and objectives. His initial consultation paper described regulation by the Court of Faculties as ‘somewhat anachronistic’, echoing Lord Aberdare in the 1880s. The Master, supported by the two professional Societies, made strenuous representations, arguing for preservation of the Faculty Office’s jurisdiction.Footnote ²²⁸ In his Report, Clementi relented, recommending that the Legal Services Board (‘LSB’) have ‘oversight function of this secular legal activity’Footnote ²²⁹ as part of his general conclusion in favour of a dual regulatory model. Although the House of Lords Scrutiny Committee questioned the appropriateness of the head of the notaries’ regulatory body also being the head of Church of England,Footnote ²³⁰ this was the model put into effect by the Legal Services Act 2007. The LSB oversees ‘front line regulators’ within a framework of statutory objectives.Footnote ²³¹

The Act defines ‘reserved legal activity’ to include reserved instrument activities, probate activities, notarial activities and the administration of oaths, amongst others.Footnote ²³² These are all tasks which may be undertaken by notaries. ‘Notarial activities’ means ‘activities which … were customarily carried on by virtue of enrolment as a notary in accordance with section 1 of the Public Notaries Act 1801’.Footnote ²³³ The Act is determinative of entitlement to carry out a ‘reserved legal activity’ and amendments were made to the 1843 Act such that the grant of a faculty does not, in itself, authorise the carrying out of notarial activities.Footnote ²³⁴ However, transitional provisions deem every ‘duly certified notary’ to be authorised by the Master to undertake those activitiesFootnote ²³⁵ and no order has been made by the Lord Chancellor to end the transitional period.Footnote ²³⁶

The Master of the Faculties is ‘an approved regulator’,Footnote ²³⁷ the only individual amongst a list of secular councils and boards.Footnote ²³⁸ The Lord Chancellor may designate further approved regulators, on the recommendation of the LSB.Footnote ²³⁹ In 2016, the Institute of Chartered Accountants of England and Wales (‘ICAEW’) applied for designation in respect of notarial services. The Master and representatives of the notarial Societies made representations to the Lord Chancellor, explaining the significance of distinctive regulation for the credit of notarial acts abroad.Footnote ²⁴⁰ Notwithstanding the LSB’s positive recommendation, the Lord Chancellor refused the application. ICAEW challenged the decision.Footnote ²⁴¹ The Master, the Societies and the President of UINL provided evidence expressing concerns about the standing of English and Welsh notaries in foreign jurisdictions if ICAEW were permitted to regulate them.Footnote ²⁴² The Divisional Court decided that the Lord Chancellor was entitled to find that the arguments, ‘which clearly raised a matter of public interest, were sufficiently cogent to put an onus on the ICAEW to rebut them’, and to conclude that that they had not done so.Footnote ²⁴³

Part 7: Notarial training, practice and ethical standards

It is unclear what form of examination was required for pre-Reformation English notaries;Footnote ²⁴⁴ presumably they had to satisfy the papal legate of their fitness for office and, as noted above, the notarial oath was a fundamental requirement. The oath remains central, the Code of Practice describing it as ‘the basis of the whole of a notary’s practice’.Footnote ²⁴⁵ Ars notaria Footnote ²⁴⁶ was taught in Bologna and Johannes of Bologna’s ‘Summa’ became influential in England.Footnote ²⁴⁷ The 1533 Act provided for ‘good and due’ examination of the ‘qualities of the persons’ seeking facultiesFootnote ²⁴⁸ but nothing further was prescribed. Apprenticeship was established as the path to admission at least by the early 1800s, as confirmed in an 1812 opinion by Doctor Arnold,Footnote ²⁴⁹ and remained so until 1991.Footnote ²⁵⁰

Master Sir John Owen developed rules pursuant to the 1990 Act, resisting the suggestion of the Notaries Society that conduct should simply be governed by a code.Footnote ²⁵¹ Succeeding Masters have followed his example, although there is also a non-statutory Code of Practice, which contains guidance to which a notary must have regard.Footnote ²⁵² The Qualifications Rules prescribe requirements for admission:Footnote ²⁵³ a notary must be at least 21 years of age and take the oath of allegiance and the statutory notarial oath. Subject to exceptions for ecclesiasticalFootnote ²⁵⁴ and foreign notaries, the candidate must be a solicitor, barrister or chartered legal executive, or hold a degree. S/he must undertake the prescribed studies and pass examinations, or demonstrate the requisite degree of knowledge through practical experience.Footnote ²⁵⁵ The required subjects are: Public and Constitutional Law, Law of Property, Contract, European Union, Equity and Trusts, Conveyancing, Law and Practice of Companies and Partnerships, Wills Probate and Administration, Roman Law as an Introduction to Civil-Law Systems, Private International Law and Notarial Practice.Footnote ²⁵⁶ The emphasis in the Roman Law module is on understanding the use of written instruments and the role of the notarius and tabellio, reception of Roman law in medieval Europe and its continued relevance to modern civil-law jurisdictions, as well as the civil law courts in England, and development of the modern European notariat. Shaw attributes the development of this wide syllabus to the desire to achieve and sustain international recognition for English and Welsh notaries.Footnote ²⁵⁷ The Practice course aims to develop understanding of the function of a notary as a public certifying officer, preparation of notarial acts, amongst other specialised areas such as bills of exchange and shipping.Footnote ²⁵⁸ The scope of the course reflects the ancient traditions and contemporary spread of notarial work, with its international emphasis. Newly admitted notaries must undertake two years’ supervision and training with an experienced practitioner.Footnote ²⁵⁹ The Master has prescribed continuing education requirements.Footnote ²⁶⁰

The process of preparing notarial acts has changed remarkably little since Roman times. Brooke’s Notary highlights development in the thirteenth century by the Bologna School of Justinian’s fundamental principles; some of these may still be discerned in the Master’s Rules. The ancient procedure, refined at Bologna, was that the notary would prepare preliminary notes for the transaction and keep them in a register (or protocol);Footnote ²⁶¹ the parties would not receive the originals, only a certified copy of the transaction itself. These notes were seen as being of great probative importance; ‘Latin’ notaries in civil law countries are still required to keep the original signed instrument in their ‘protocol’. The practice is reflected in the ancient oath, by which the notary promised to reduce contracts into ‘an instrument or register’ and then ‘not maliciously delay to make a public instrument therefrom …’; and in the current Notaries Practice Regulations which require retention of the originals or copies of instruments in public form in a protocol – paper or electronic – and make provision for inspection of notarial registers at the Master’s discretion.Footnote ²⁶² Faculty Office Guidance on Remote Notarisation reinterprets in contemporary terms the ancient visa et audita suis sensibus principle.Footnote ²⁶³ The Practice Regulations also continue the historic principles that a notary is obliged to offer services to any person lawfully and reasonably requiring themFootnote ²⁶⁴ and must not perform any notarial act in which s/he has a personal interest.Footnote ²⁶⁵ Ayliffe recorded these rules in his Parergon Juris Canonici Anglicani (1726), over a century before the first edition of Brooke’s Notary; they flow from the public nature of the notary’s office which he also expounded, with much citation of pre-Reformation canonical and civilian authority.Footnote ²⁶⁶

The development of international trade on the secular side and ecclesiastical jurisdiction on the spiritual side created demand for notarial skills, so the profession thrived, in spite of the strength of the common law in England, as a brief historical survey illustrates.

Ayliffe devoted a chapter to notaries which is much cited by later commentators.Footnote ²⁶⁷ Although Baker labels him a ‘sad figure’,Footnote ²⁶⁸ Ayliffe speaks charmingly of the ethical character of the notary’s work: ‘he ought to keep all things committed to his Trust as the Apple of his Eye … the Business of a Notary is not so much a Dignity, as it is a Matter of great Trust and Duty’.Footnote ²⁶⁹ The Code of Practice (para 44) enshrines his principles in contemporary terms which also hark back to Justinian’s Novellae:Footnote ²⁷⁰

Samuel’s study of Anglo-Jewish notaries offers a distinctive view of secular practice. He traces forty-five Jews who were granted faculties and admitted to the Scriveners’ Company between 1741 and 1845, noting the mercantile work for which their international connections and foreign languages skills peculiarly fitted them.Footnote ²⁷² The scriveners’ examinations continue to require fluency in at least two foreign languages and associated legal systems.Footnote ²⁷³

Lord Tenterden gave a snapshot of a City notary’s day in 1830.Footnote ²⁷⁴ Disagreeing that the work was limited to preparing ship-protests, he said:

Phillimore (1895) concentrates on the notary’s role as ecclesiastical registrar, identifying three duties: to register and inroll judicial acts of court; to deliver copies of them to the parties; and keep the originals in his custody, including protocols, notes or first drafts. He reproduces Canon 123 of 1603, noting Rex v Verlest (1813)Footnote ²⁷⁵ where a criminal prosecution for perjury based on an admission sworn before the Chancellor of London’s surrogate failed because the surrogate had not been duly appointed before a notary public; the secular court applied Canon 123, holding the purported appointment to be a nullity.

Registrars’ records are an important, although problematic, source of evidence as to historical practice in the ecclesiastical courts. Elton complained:

This verdict may be a little harsh; as Helmholz notes, records were preserved by registrars in difficult conditions during the Commonwealth.Footnote ²⁷⁷ The earliest surviving post Reformation act books of the Court of Arches, for example, are severely damaged.Footnote ²⁷⁸ Research of such records is beyond the scope of this article but they form an important heritage bequeathed by notary registrars.Footnote ²⁷⁹

Part 8: Ecclesiastical notaries

Although the notary public arrived in England in the service of the Church and was much, possibly principally, employed by bishops and their courts in the succeeding centuries,Footnote ²⁸⁰ the first formal differentiation between ecclesiastical notariesFootnote ²⁸¹ and others occurred in the Public Notaries Act 1801,Footnote ²⁸² the material part of which remains in force and exempts from the statutory requirements for apprenticeship:

This exemption was retained by amendments to the Courts and Legal Services Bill in 1990Footnote ²⁸³ and the 2007 Act.Footnote ²⁸⁴ Its rationale is not explained in Hansard or any of the statutory materials. Government notaries are diplomatic and consular officials, who have statutory power to administer oaths, take affidavits and do any notarial act which any notary public may do in the United Kingdom.Footnote ²⁸⁵ Section 14 includes the criterion of necessity, without defining what an ecclesiastical notary is or the functions which require one. Canon 134 of 1603 assumed, without prescribing, that a registrar would be a notary public. Ayliffe argued that this was an essential requirement for a registrar because it seemed to him to be a ‘necessary qualification to his Office’,Footnote ²⁸⁶ citing Paulus de Castrensis, a fourteenth century doctor of canon and civil law. The proposition is repeated, without qualification, in the first (1873) edition of Phillimore Footnote ²⁸⁷ but the younger Phillimore, in 1895, doubted it, citing Athon’s gloss on Otto.Footnote ²⁸⁸ Phillimore’s first edition discusses notaries public without preamble, but in the second edition, it was considered necessary to justify their place in a work on ecclesiastical law.Footnote ²⁸⁹ Twentieth century texts make no mention of notaries in connection with ecclesiastical courtsFootnote ²⁹⁰ although Brooke’s Notary cites Halsbury’s for the proposition that their principal duties are ‘to attest records of ecclesiastical proceedings such as the election and installation of bishops, the consecration of churchyards etc.’ at which ceremonies their presence is ‘often considered to be an essential requirement’.Footnote ²⁹¹ Revised Canon G4 Of Registrars contains no requirement for notarial qualification; instead, the candidate must be a solicitor or barrister, and there is no equivalent of Canon 123 of 1603.Footnote ²⁹² This has been the case since revision of the Canons in 1968.

The Church of England appears gradually to have moved from a position where the canonical assumption was that an episcopal registrar would or must be a notary to one of indifference on the point. This stance may be contrasted with the Roman Catholic Code which still provides that acts of court are null if the notary has not signed them, perpetuating the rule laid down in Canon 38 of Lateran IV.Footnote ²⁹³ The reasons for the Anglican approach are probably the reduction of ecclesiastical jurisdictions in the nineteenth century, admission of common lawyers into the Church’s courts as solicitors, advocates and judges, and modernisation of ecclesiastical court and tribunal procedure, aligning it with secular courts. In particular, viva voce evidence was permitted by the Evidence in Ecclesiastical Courts Act 1855;Footnote ²⁹⁴ whilst the option of evidence being taken on oath before ‘an examiner’ was not abolished until 2019, the procedure was described in General Synod as ‘obsolete’.Footnote ²⁹⁵ Witness evidence is now given orally or in the form of expert reports.Footnote ²⁹⁶ There is no need of notaries to examine witnesses or make notes of private interrogations by judges; evidence is received in the presence of all parties, with barristers examining in chief and cross-examining along common law lines. Judges and advocates make their own notes of the evidence, as does the Registrar, but the latter’s note carries no special evidential status. ‘Act of court’ is neither a statutory nor a colloquial term; instead, the courts issue orders, directions and judgments which should be held, together with all correspondence, on the court file.Footnote ²⁹⁷

Halsbury’s notes the amalgamation of functions of registrar of the consistory court and registrar of the diocese/legal adviser to the bishop,Footnote ²⁹⁸ listing the specific duties of the latter office. These concern: marriage licences, sequestration, consecration of churches and burial grounds and maintenance of episcopal and diocesan registers. Notarisation is not required for marriage licences, although the procedural requirements are not dissimilar.Footnote ²⁹⁹ Similarly, although sequestration is a formal, and sometimes a court process, it does not necessarily involve notarisation of documents;Footnote ³⁰⁰ nor does the maintenance of episcopal and diocesan records. Whilst there are now no statutory provisions relating to consecration,Footnote ³⁰¹ Halsbury’s continues to refer to Phillimore, who explains that the registrar’s statutory fee (when there was one) included ‘the notarial act’.Footnote ³⁰² Phillimore, citing Gibson, states that a new bishop’s consent to election must be given in the presence of a notary public,Footnote ³⁰³ adding that the facts of election and confirmation must be recorded by the notary ‘to remain as authentic to posterity’.Footnote ³⁰⁴ Although Halsbury’s makes no reference to the notary, this procedure is still followed in confirmations of election in the Vicar-General’s Court, the notarial functions being performed by the Provincial Registrar, an ecclesiastical notary.Footnote ³⁰⁵

To summarise, there are now few functions in the Church of England, which, as a matter of law, require a notary to give them legal effect, and no offices for which the holder is statutorily or canonically required to be a notary public. There is, however, a long tradition, which might be termed a ‘custom’, that diocesan and provincial registrars are notaries. Modern regulations made by the Master provide for admission as a notary public, not on the basis of examination, but upon proof of appointment as:

Such application is for admission as a notary public for ecclesiastical purposes only. The supporting certificate of fitness must record that ‘the applicant is conformable to the doctrine and discipline of the Church of England as by law established (or, in the case of a person qualified only by reason of holding an ecclesiastical appointment in Wales, the doctrine, discipline and constitution of the Church in Wales)’. The jurisdiction of the Archbishop of Canterbury’s Faculty Office over the disestablished Church in Wales is curious, but explicable on the basis of the statutory functions in relation to Welsh notaries reserved to the Master by the Courts and Legal Services Act 1990, s 57(3) and the Legal Services Act 2007,Footnote ³⁰⁸ which extends to England and Wales. The duties of ecclesiastical notaries in relation to keeping records are limited to:

Of the registrars serving the 42 dioceses, 12 are ecclesiastical notaries, together with two provincial registrars.Footnote ³¹⁰ There is some debate amongst them as to whether they are, in fact, required to be admitted as notaries, even on the limited basis.Footnote ³¹¹ Given current law and practice, as well as the long history of notary registrars, this debate is unsurprising but it is clear that some of the professional standards and skills required of the notary are needed for proper operation of the Church’s courts and records; court proceedings can have far-reaching consequences, especially in the disciplinary and sometimes in the faculty jurisdiction. Proper record-keeping is also important in ecclesiastical safeguarding and property law contexts. As the Church seeks to move away from adversarial models of dispute resolution in some areas, it may be able to borrow from notarial practice and re-interpret its own pre-1850s court procedures. The draft Clergy Conduct Measure, for example, proposed more flexible procedures which could include the taking and recording of evidence by skilled examiners rather than oral examination by barristers.Footnote ³¹²

Part 9: Probative force of notarial acts

The Archbishop’s faculty of appointment as a notary public decrees ‘that full faith ought to be given as well in judgment as thereout to the instruments to be from time to time made by you’. The Notaries Practice Regulations 2019 provide that, ‘A notary in possession of a valid practising certificate issued pursuant to the Notaries (Practising Certificate) Rules 2012 may issue notarial acts in the public or private forms intended for use in England and Wales and in any other jurisdiction’. The Regulations and Code generally stress the significance of the notary’s duty of fidelity, in part because courts and individuals in foreign jurisdictions will rely on his or her notarial acts.Footnote ³¹³

Unlike the Pope, the Master has never claimed worldwide jurisdiction to create notaries, the territorial extent of nineteenth century legislation reflecting instead the bounds of the secular British Empire.Footnote ³¹⁴ International recognition of English and Welsh notarial acts is now a matter for domestic and foreign courts and governments. Ayliffe, citing civilians and canonists, stresses notarial ‘fidelity’Footnote ³¹⁵ and states that ‘a judicial Register or Record’ made by a notary ‘is Evidence in every Court; And a Bishop’s Register establishes a perpetual Proof and Evidence, when ‘tis found in the Bishop’s Archives’,Footnote ³¹⁶ but he is speaking in the ecclesiastical context.

At common law, authority on the probative value of notarial acts in secular English courts was conflicting.Footnote ³¹⁷ The high point was a statement of Eldon LC in Hutcheon v Mannington Footnote ³¹⁸ to the effect that ‘a Notary Public by the Law of Nations has credit everywhere’. He gave no reasoning for this dictum and it contrasts with Lord Tenterden’s pronouncement in R v Scriveners’ Company Footnote ³¹⁹ that notarial acts were not ‘evidence’ in the common law courts. It may be no accident, however, that Lord Eldon’s older brother, Lord Stowell,Footnote ³²⁰ was, at the time, both Master of the Faculty Office and Judge of the High Court of Admiralty, where civilian law and procedure applied.

The domestic position was clarified in 1998, with the introduction of Rule 32.20 to the Civil Procedure Rules, stating, ‘a notarial act or instrument may be received in evidence without further proof as duly authenticated in accordance with the requirements of law unless the contrary is proved’.

The Faculty Office was instrumental in achieving this reform ‘after centuries of opposition by the common law courts and Lord Chancellors’.Footnote ³²¹ Its effect is, broadly, to align domestic common law courts with continental civil law and the note in the White Book states ‘The rebuttable presumption relating to notarial acts and instruments generally, introduced by this rule facilitates proof in various procedural contexts, particularly those with a foreign dimension’.

Chianale argues that this change, along with developments on the Continent which nuance the traditional unqualified approach to the status of notarial acts, means that, ‘it is now clear that the distinction between the common law and civil law is increasingly disappearing on the significance of notarial acts’.Footnote ³²²

A canon lawyer, however, might characterise the introduction of CPR Rule 32.20 as the secular jurisdiction catching up with the courts ecclesiastical, whose practice, derived from Alexander III’s 1167 decretal to Roger, Bishop of Worcester, accorded full probative force to documents produced as ‘instrumenta publica’.Footnote ³²³ Echoing Lateran IV Canon 38, Ayliffe states, ‘the Evidence of a Notary is so great, that two Idoneous Witnesses are not of equal Credit to the Writing of one publick Notary’.Footnote ³²⁴ Citing Liber Extra,Footnote ³²⁵ he adds that the judicial Register made by him, ‘is Evidence in every Court according to the civil and canon law … One Notary Publick is sufficient for the Exemplification of any Act, because there is no Matter that requires more than one Notary to attest it’.

Comparative analysis by Chianale and UINLFootnote ³²⁶ has been limited to contrasts between Latin jurisdictions and English common law, overlooking the importance of notaries in domestic canon law.

Part 10: Comparison with the place of notaries in civil law jurisdictions

Understanding the regulation and status of notaries in England and Wales matters because, as Brooke’s Notary explains:

European civilian practitioners see the notary as a public official.Footnote ³²⁸ At the UINL Dialogue between civil and common law systems, this was stressed by senior French and German notaries,Footnote ³²⁹ who explained that the Latin notary is critical to orderly land registration and tax collection. In this respect, development of the faculty of French notaries led the way. They came to be organised by the Crown and their acts were fundamental to the Romano-Canonical procedure introduced in the French legal reforms of Louis IX.Footnote ³³⁰ In 1597, Henry IV made the office hereditary and saleable.Footnote ³³¹ Notaries were retained in a modernised, non-hereditary, form after the Revolution, their public status confirmed in statute.Footnote ³³² The French Notarial Law 1803 provided that notarial acts would have full credit in court.Footnote ³³³ The UINL proclaims, ‘Rooted in the public conscience, the notary is recognized as being part of the social organization of modern France’.

The Napoleonic Code was adopted across much of Europe, so the French system is widespread on the Continent and in other parts of the world whose legal history is influenced by a European colonial past.Footnote ³³⁴ By contrast, whilst notaries are of great economic significance to the country in terms of foreign trade, especially in the City of London, not even their strongest advocate could substitute the word ‘England’ for ‘France’ in the UINL’s statement.

V G Heinz, a dual qualified German notary and English barrister, offers the following analysis:

For British common lawyers, it is not conventional to think about a member of a legal profession as being under ‘State supervision’. Nor does this view accord with the LSB’s description of itself as, ‘independent both of government and the profession … This was important as maintenance of the rule of law was thought to depend on the regulation of lawyers being handled independently of government’.Footnote ³³⁶ Clementi had stressed independence of Government as an advantage of his model of the ‘super regulator’.Footnote ³³⁷ This prizing of independence reflects British ideas of the importance of the citizen having access to professional legal advisers who, whilst they owe duties under their professional regulations to higher principles, are nevertheless independent of the organs of State. Far from being tax officials, notaries are not treated as ‘public officers’ for tax purposesFootnote ³³⁸ and land registration is undertaken under separate legislation by statutory officers and their staff.Footnote ³³⁹

Wade observes that, in former times, an ‘office’ was treated as ‘a form of property which could be held and recovered in specie’, a remnant of this thinking being the availability of public law remedies, rather than contractual damages, for wrongful removal.Footnote ³⁴⁰ Thus, William Somner, Notary Public and ‘Register’ of Canterbury Commissary Court in the seventeenth century, served an apprenticeship to his father and succeeded him on his death, the office of Registrar normally being granted for life.Footnote ³⁴¹ Nowadays, the terms and duration of appointment for diocesan registrars are statutory and this role fits easily within the concept of an office.Footnote ³⁴² Turning to general notaries, application of Wade’s criteria is more complex. Writings, legislation, the oath and caselaw have consistently referred to the ‘office’ of notary public.Footnote ³⁴³ In the debate over the 1884 Bill to admit solicitors to notarial work, one of the reasons advanced in opposition was the absence of proposals for compensating notaries for loss of office.Footnote ³⁴⁴ Wade, however, distinguishes an office from a profession, citing Edwards v Clinch Footnote ³⁴⁵ where the House of Lords held that a surveyor who periodically held public inquiries was not an office-holder for tax purposes; they approved the proposition that an office is a ‘subsisting, permanent substantive position which has an existence independent of the person who fills it’. On this test, notaries are merely members of a profession and their regulation by the Master under the LSB reflects this position; for example, they are required to renew their practice certificates annually.Footnote ³⁴⁶

From the perspective of an ecclesiastical lawyer, the continental view also overstates the effect of establishment of the Church and, hence, misunderstands the status of the Archbishop of Canterbury’s Faculty Office. It is true that the Henrician Reformation Settlement instituted a ‘fundamental identification of the Church of England with the State, the monarch being the head of each’.Footnote ³⁴⁷ All courts, including those exercising ecclesiastical jurisdiction, became the King’s courts presided over by judges approved by the monarch or the Lord Chancellor.Footnote ³⁴⁸ Nevertheless, Phillimore J held in 1907 that the Church of England is not a ‘department of State’Footnote ³⁴⁹ and his decision was affirmed by the House of Lords in Parochial Church Council of the Parish of Aston Cantlow v Wallbank & Ano,Footnote ³⁵⁰ stating:

This is a modern statement of the highest authority. Their Lordships, however, were not considering the constitutional position of ecclesiastical courts generally, the Court of Faculties specifically or the Archbishop of Canterbury. Moreover, the decision pre-dates the Legal Services Act 2007. The analysis does not sit easily with statutory arrangements for notarial regulation, which the Faculty Office website describes as ‘more constitutional than ecclesiastical in the modern sense of that word’.Footnote ³⁵¹ In the Accountants’ case,Footnote ³⁵² the Divisional Court recognised that objections adduced by the Master of Faculties and notaries ‘clearly raised a matter of public interest’, with no suggestion that this interest was religious. Whilst the Master’s powers are derived from the Archbishop’s pre-Reformation legatine powers, the 1533 Act can be interpreted as a taking (or recovery, according to the Preamble) of power from the Pope by the King and statutory delegation to the Archbishop or his Commissary. To that extent, it might be said that the State has devolved a function of government;Footnote ³⁵³ accordingly, Canon C17 provides:

If the Archbishopric of Canterbury ceased to exist,Footnote ³⁵⁵ then the State would have to make other arrangements for regulating notaries, as happened in Wales on disestablishment. The Master’s jurisdiction is terminable by the Lord Chancellor under the transitional provisions of the 2007 ActFootnote ³⁵⁶ and the LSB has powers of de-designationFootnote ³⁵⁷ as well as the ability to promote allocation of regulatory functions to others.Footnote ³⁵⁸

The position in England and Wales is not on all fours with the ‘state-controlled’ European model, because of the absence of notaries from the secular common law system and their continuing connection with the Church after the Reformation. Nevertheless, the essentials of regulation under statute by an independent official are present. The Master’s appointment is approved by the Lord Chancellor/Justice Secretary and the monarch, s/he takes the oath of allegiance and judicial oathFootnote ³⁵⁹ and s/he is answerable to an oversight regulator to which her rules, made under statutory powers, must be submitted for approval.Footnote ³⁶⁰

Part 11: Conclusion

Notaries were introduced to this country by the Church and became essential to the distinctive procedure of its courts which traditionally did not apply common law rules of evidence. Specifically, the English Church came to follow the rule, promulgated at Lateran IV, that all court business must be conducted in the presence of and recorded by a notary. This procedure was sufficiently well-established at the Reformation to be enshrined in the 1603 Canons.

Church lawyers – writers, teachers, judges and practitioners – have contributed significantly to the remarkable continuity of the notarial profession for nearly 800 years in the predominantly common law jurisdiction of England and Wales.

Before the secular notarial profession produced a practitioner’s textbook, principles developed by Justinian and reinterpreted by canonists and civilians at Bologna were transmitted to English notaries by Archbishop Pecham’s notary, Johannes de Bononia. After the Reformation, these principles were handed on by the eighteenth century canonist Ayliffe and his successors, demonstrating the pervasive and enduring influence of pre-Reformation canon law.

By continuing to provide a supply of notaries to service both the ecclesiastical courts and England’s expanding international trade, the Faculty Office helped to secure continuity of substantive and procedural ecclesiastical law and contributed to national economic development.

Replacing the papal curia, successive Masters developed a judicial function which ensured rudimentary but fair professional regulation. They laid the foundations for the development of modern regulatory control on behalf of the public which is, nonetheless, founded on ancient principles refined by medieval canon and civilian lawyers.

Notwithstanding the English Reformation, the practice of the courts ecclesiastical and the regulation of notaries kept alive a unique link with pre-Reformation canon law and the civil law jurisdictions of Europe which modern secularisation has not destroyed. In some parts of the former British Empire and Wales, regulation of notaries continues to be carried out in the name of the Archbishop of Canterbury, although the Church of England has no formal status in those jurisdictions.

Following wholesale reorganisation of the ecclesiastical and admiralty jurisdictions in the nineteenth century, court-related work for notaries declined. The emphasis of notarial practice became, and remains, international, servicing commercial transactions as well as the individual needs of those with familial or business connections abroad.

Concerted action led by the Faculty Office, together with the Societies, secured the profession’s survival at critical moments of societal and legislative change in the nineteenth, twentieth and twenty-first centuries. Notaries remain a distinct profession and their acts are now properly recognised in domestic courts, aiding recognition abroad. The Faculty Office continues to lead the way in responding to change via a rigorous modern education and admission process and in adapting the ancient ‘audita et visa suis sensibus’ principle for contemporary application.

The Master’s rules and Code of Practice embody many canonically based principles, including the duties of acting and independence, together with important details surrounding the preparation and recording of notarial acts.

This regulation, still carried out in the name of the Archbishop of Canterbury, is of real significance to the credit of English and Welsh notaries in foreign jurisdictions and, hence, to the rule of law, the national economy and the multi-cultural society of England and Wales to this day. The role of the Court of Faculties has been recognised by the Lord Chancellor and the Administrative Court as constitutionally and economically significant in the face of challenges via modern legislative programmes and litigation.