The functions of a Notary Public are derived from the law merchant, which has been defined by Jowitt’s Dictionary of English Law as “that part of the law of England which governs mercantile transactions. It is founded upon the general custom of merchants of all nations, which, though different from the general rules of the common law, has been gradually engrafted into it, and made to form part of it”.
Article 41 of Magna Carta specifically confirms the rights of merchants to “enter or leave England unharmed and without fear” and confirms that merchants “may stay or travel within it [England], by land or water, for the purposes of trade, free from all illegal exactions, in accordance with ancient and lawful customs”.
Today, the law merchant is alive and well whether in relation to engagement by land or water or equally on the digital highway. The role of the Notary has always been to authenticate and validate signatures, seals and identities and in doing so, to be a trusted professional in the Global World where proof of identity and authenticity of transactions is critical.
In the global world of the digital economy the notarial act allows for digital delivery and the Notarial Practice Rules 2014 provide that notarial acts “means 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”.
The website of the Notaries Society states that: “Many notaries provide a service for commercial firms engaged in international trade, and for private individuals. The most common tasks are:
- Preparing and witnessing powers of attorney for use overseas
- Dealing with purchase or sale of land and property abroad
- Providing documents to deal with the administration of the estates of people who are abroad, or owning property abroad
- Authenticating personal documents and information for immigration or emigration purposes, or to apply to marry or to work abroad
- Authenticating company and business documents and transactions.”
Whilst many Notaries deal with documents executed in England and Wales but requiring authenticity in a foreign jurisdiction, my notarial experience over twenty years or more is that there is an increasingly relevant role for the Notary in the Global World.
On the one hand there are the authentications of signature, seals and documents used in international corporate and trade transactions and on the other there are international private transactions involving foreign property and other foreign assets together with the authentication of identities and intentions of foreign citizens seeking residency or permission to enter England & Wales.
The law merchant confirmed in Magna Carta the right for merchants of all nations to do business in England on the assumption that the same rights existed for merchants to do business in other countries.
Indeed, the only occasion where merchants are prevented from free trade in England is in Article 41 of Magna Carta where any such merchants “found in our country at the outbreak of war should be detained without injury to their persons or property, until we or our chief justice have discovered how our own merchants are being treated in the country at war with us. If our own merchants are safe they shall be safe too”.
The above notions of free movement of trade but also of embargos are very relevant today and the Notary has an essential role in assisting businesses to be lawfully transact business in any part of the world.
In performing notarial services the Notary must be global in his knowledge, whilst at the same time adhering to strict principles that include upholding the rule of law and the proper administration of justice, acting with integrity, maintaining independence and impartiality and acting in a way that maintains the trust in the office of notary which the public may reasonably expect.
The original Article 40 of Magna Carta, in effect, says “To no one will we sell, to no one deny or delay right or justice.” Every Notary supports this by his oath that includes the following words “I will faithfully make contracts or instruments for or between any party or parties requiring the same…I will not make or attest any act, contract, or instrument, in which I shall know there is violence or fraud.”
The seal and the role of the Notary are as essential in the Global World as it was 800 years ago when Magna Carta was sealed.