150 Mass. 586 | Mass. | 1890
To his Excellency the Governor and the Honorable Council of the Commonwealth of Massachusetts:
The undersigned, Justices of the Supreme Judicial Court, have considered the question upon which our opinion was required on the fifth day of the present month, and respectfully submit the following opinion.
The question is as follows: “ Under the Constitution and laws of this Commonwealth, can a woman, married or unmarried, if duly appointed and qualified as a notary public, legally perform all acts pertaining to such office ? ”
The acts which now pertain to the office of notary public in Massachusetts are, in part, acts which notaries public are authorized by statute to perform, and, in part, acts which from very early times they have been accustomed to perform. The office is of ancient origin, and for many centuries has been known
In England notaries public were appointed by the authority of the Pope of Rome until the Statute of 25 Hen. VIII. c. 21, and since the passage of this statute they have been appointed by the Court of Faculties of the Archbishop of Canterbury. Under the Charter of the Colony of Massachusetts Bay a notary public was elected by the General Court, and that Court prescribed the oath to be taken by him, and some of his duties, and established his fees and the form of his seal, which was engraved at the expense of the Colony, and he was made exempt from militia service.
Notaries public were not mentioned in the Province Charter, but it appears that until the year 1720 they were appointed by the Governor and Council, in the same manner as judicial officers. In that year the House of Representatives contended that notaries public should be elected by the General Court, pursuant to the clause in the Charter which granted power to that Court “ to name and settle annually all civil officers,”
The fees of notaries public were established by statute, but it does not appear that any Provincial statute was passed which defined any of their duties. Apparently the only duties which they performed under the Province Charter were those which by custom were attached to the office.
The Constitution of the Commonwealth as originally adopted provided that “The Secretary, Treasurer and Receiver General, and the Commissary General, notaries public, and naval officers shall be chosen annually by joint ballot of the Senators and Representatives in one room.” †
By the Fourth Amendment to the Constitution adopted on April 9, 1821, it was provided that “ Notaries public shall be appointed by the Governor in the same manner as judicial officers are appointed, and shall hold their offices during seven years, unless sooner removed by the Governor with the consent of the Council, upon the address of both Houses of the Legislature.”
The principal acts which are now recognized in this Commonwealth as pertaining to the office of notary public, independently of the provisions of statute, are the presentment and protest of foreign bills of exchange, and the noting and extending of marine protests. In some courts of admiralty, it may be that whenever the law of the place, whether customary or statutory, requires or authorizes an act to be done by or before a notary public, and requires that he officially make and keep a record of it, a copy of the record certified under his hand and seal is admissible as evidence that the act certified to was done. But courts of common law to only a limited extent take judicial cognizance of the seals of notaries public, and admit notarial certificates as evidence.
In this Commonwealth by statute notaries public are authorized within the Commonwealth to take the acknowledgment of deeds; to protest any bill of exchange, promissory note, or order for the payment of money •, to administer oaths whenever a justice of the peace could administer them; and to take the affi
After such search as we have been able to make, we do not find that a woman has ever held the office of notary public in Massachusetts. We are not aware that a woman has ever been appointed to this office in England. It is impossible, in the time which we can give to the subject, to ascertain the practice in this respect of other foreign countries, but we know of no instance of the appointment of a woman to the office of notary public in any foreign country. Although the office is named in the Constitution, and the manner of appointment provided for, the qualifications required of notaries public are nowhere prescribed by the Constitution. Notaries public are to be appointed in the same manner as judicial officers are appointed, but they are not judicial officers. There is no statute prescribing the qualifications which persons must have in order to be
In June, 1871, the Governor and Council requested the opinion of the Justices of this Court upon the following question: “ Under the Constitution of this Common wealth, can a woman, if duly appointed and qualified as a justice of the peace, legally perform all acts pertaining to such office? ”
In answering the question now before us, we do not deem it necessary or proper to consider whether it is competent for the Legislature by statute to authorize the Governor, by and with the advice and consent of the Council, to appoint women notaries public. No such statute has been passed. In the absence of any statute authorizing the appointment of women to be notaries public, we are of opinion that the clause of the Constitution which provides for the appointment of notaries public, inter
The Chief Justice has been prevented by illness from taking part in the consideration of the question.
Walbridge A. Field.
Charles Devens.
William Allen.
Charles Allen.
Oliver Wendell Holmes, Jr.
Marcus P. Knowlton.
Boston, March 18, 1890,
Colonial Laws, (Whitmore’s ed., 1887,) 109, 125, 158, 165, 313. 2 Mass. Col. Rec. 86, 209. 3 Mass. Col. Rec. 119, 210, 239. 4 Mass. Col. Rec., Pt. I. 28, 57, 118. 5 Mass. Col. Rec. 438.
Anc. Chart. 33.
1 Province Laws, (State ed.) 731, note,
Const. Mass., Part II. Chap. II. Sect. IV. Art. I.
Robinson’s case, 131 Mass. 376.
Opinion of the Justices, 107 Mass. 604.
See St. 1877, c. 211.
Opinion of the Justices, 115 Mass. 602.
Opinion of the Justices, 136 Mass. 578.