English Common Law for Notaries
Colorado Statute CRS 2-4-211. Common Law of England
The common law of England so far as the same is applicable and of a general nature,
and all acts and statutes of the British parliament, made in aid of or to supply the defects of the common law prior to the fourth year of James the First (1607),
excepting the second section of the sixth chapter of forty-third Elizabeth (1601),
the eighth chapter of thirteenth Elizabeth (1571), and
the ninth chapter of thirty-seventh Henry the Eighth (1545),
and which are of a general nature, and not local to that kingdom,
shall be the rule of decision, and shall be considered as of full force until repealed by legislative authority.
Notaries were first introduced into England in the 13th and 14th centuries. English common law developed free from most influences of Roman law. Notaries were often appointed by the Papal Legate or Archbishop of Canterbury, many were clergy members. Over time, clergy members ceased to involve themselves in secular business, and laymen began to assume the role of a modern notary.
Ecclesiastical License Act
During the reign of Henry VIII, the Church of England separated from the Church in Rome. Under the Ecclesiastical License Act of 1533, the English monarch assumed the power to appoint notaries. Previously they were appointed by the Pope in Rome. The King delegated the power to the head of the Church of England, the Archbishop of Canterbury, who delegated it to the Court of Faculties.
Jamestown, Colony of Virginia
The significance of the fourth year of the reign of King James the First (1607) is that the laws for the New World settlement of Jamestown, Colony of Virginia, founded in 1607, were based on the English common law at that time. In Colonial America, only persons of high moral character were appointed as Notaries. In remote regions, a Notary might be the only government representative within several days’ horse ride.
Notary laws in the United States were originally based on English common law, but have evolved over time as individual states have written notary statutes that govern notary procedures.
English common law remains as a legal foundation, primarily for the law of contracts, the law of torts, and property law. For example, a notary has a duty to use reasonable care to prevent harm to the public. The notary should know and follow the law, and adhere to notary best practices to demonstrate reasonable care. Failure to use reasonable care can result in a claim of negligence.
Although Colorado law does require a notary to record notarial acts in a notary journal, many other states do not have a statutory requirement to keep a notary journal. However, some legal experts believe that all notaries have an English common law duty to keep records of their acts in a notary journal. Other public officials keep written records. The word notary comes from the Latin word notarius, meaning a person who makes notes of events and transactions.
In the Vancura case in Illinois, in 2008, a notary was found liable for negligence. The court ruled that in a situation where state notary law is silent, the notary should follow widely accepted best practices for guidance on proper notary procedure, and cited the Model Notary Act as a source for guidance. Many states have adopted all or portions of the Model Notary Act into law.
Employers have a common law duty to prevent harm to third parties caused by inadequately trained and supervised notary employees. Employers should make sure that all employee notaries have completed an approved Colorado Notary Training course and passed the Colorado notary exam. Employers should also make sure that employee notaries are in compliance with any recent changes in notary laws and notary best practices. Annual continuing education and repeating the notary exam would be prudent measures.
Common Law Marriage
Couples living together may file an Affidavit of Common Law Marriage. This will recognize a marriage based on English common law, without a formal marriage, if certain conditions are met.
Some jurisdictions will allow a name change by filing an Affidavit of Name Change, based on English common law.
Under general contract principles, a valid acceptance of a sales contract must mirror or specifically agree to the same terms as the offer. This is known as the common law mirror image rule.
Other instances where the English common law applies include jury trials, civil liberties and habeas corpus. Colorado court cases make frequent references to the common law. I did not find a reference book containing English common law of 1607, at the founding of Jamestown. The Archbishop of Canterbury may have a book of English notary laws from that time period. I am not aware of a book or legal treatise containing all notary court cases since Colorado Territory was formed in 1861.
Colonial notaries lived in seaport towns and mostly dealt with commercial law and maritime law. Notary practice was based on unwritten international custom, derived from the Law Merchant. Colonial statutes did not regulate traditional notarial work. Notaries kept books where they recorded their notarial acts, and sometimes kept documents that could not be recorded in a public records office.
Sir William Blackstone
Sir William Blackstone, (1723-1780), wrote the Commentaries on the Laws of England, published in Oxford, England, 1765-1769. He divided the English common law into four volumes. Book I, the “Rights of Persons“, Book II, the “Rights of Things“, Book III, “Private Wrongs” and Book IV, “Public Wrongs“. The books were readable and understandable by non-lawyers. Copies of the books may be found online, including the Yale Law School Library.
The area of eastern Colorado, west to the Rockies, was once part of Louisiana Territory, aka New France, under French law, which is based on Roman law. In 1682, French explorer La Salle claimed the land of the Mississippi River basin for King Louis XIV of France.
In 1803, Thomas Jefferson bought the Louisiana Purchase from France, and the area came under territorial law, based on English common law, but the state of Louisiana kept a legal system based on French law. Notaries in Louisiana are civil law notaries, and have more legal training and powers than common law notaries in the other 49 states.
Notaries should avoid procedures that are not prescribed by law, or best practices, or where special or advanced legal knowledge or training is required. Whenever Colorado notary law is silent, a Colorado notary should refer to the common law standards of best practices listed in the Model Notary Act.
If a notary has questions about English common law in Colorado, he/she should seek legal counsel from an attorney, knowledgeable in that area of the law. Comments and information from readers are welcome as I do more research on this topic.