History of County Clerk

The County Clerk in the State of New Jersey is one of three County
wide elected Constitutional Officers along with the Sheriff and
Surrogate. The term of a County Clerk is five years. The County
Clerk is responsible for the administration of a broad range of
services including the filing and recording of all documents
affecting real estate ownership/transfer, the processing of U.S.
Passport applications, assisting individuals who wish to become a
Notary Public, the issuance of Identification Cards, the filing of
Business Trade Names, and the supervision of elections.

A review of the history of recording real estate documents offers a
unique perspective on the evolution of the County Clerk.
Historically to undertake the transfer of ownership of real estate,
the only persons who could read and write were the clergy who were
held in great regard by the kings and their courts. The clergy
appointed other learned people who could read and write but were not
necessarily “religious”, and under “vows of the church”. They were
called “clericus”. So important were “clericus” or “clerks” thought
to be, that they enjoyed the protection of the church and doctrine
of “benefit of clergy” which prohibited the courts from gaining
jurisdiction over these persons and gave them a total privilege of
exemption from punishments for crimes. This was not abolished in
England until 1827 but was so abhorred by the colonists that one of
the first acts of the United States Congress on April 30, 1790 was
to abolish the benefit of clergy where it existed. (Blackstone,
supra., sec. 60)

For 500 years, through the 16th century, the transfer of property
occurred by documents written and held by the “clerks.” And because
these “clerks” could read and write, they became “clerks to the
courts” of the various lords in England maintaining records of the
Court proceedings. With the colonialization of the United States,
that procedure was adopted within the legal jurisdictions of the
various lords and the attendant “clerks.”

Because of the distance between the “motherland” and the “colonies,”
inhabitants formed various agreements for the recording and transfer
of property. The first was in 1676 entitled “The Consessions and
Agreements of the Proprietors, Freeholders and Inhabitants of the
Providence of West New Jersey” which made provisions for the
recording of deeds and other conveyances of land. Conveyances which
were recorded were of full force and effect, those which were not
recorded within six months were of no force and effect. The statute
was so ignored that an Act was passed in 1695 imposing a penalty of
“twenty shillings on every person who refused or neglected to bring
his deed or conveyance to the proper recording clerk within six
months.” A similar agreement was adopted into under the “Fundamental
Constitutions of East New Jersey,” dated 1683, which required the
recordation in a public “registry” of all deeds, otherwise they were
“void at law.”

Both the East and West Jersey proprietors ceded and surrendered
their respective rights back to the British crown in 1702 raising
concern that no method existed for the transfer of property. Various
colonial governments attempted to adopt legislation, but none ever
received the final approval of the king.

After the Revolutionary War, the State of New Jersey returned to the
basic concept that recording was necessary to protect purchasers of
property. Under the “Conveyancing Act of 1799,” which is the
precursor of the existing New Jersey statutes for recording” every
conveyance of property must be “recorded” in a “register” or it
shall be “void and of no effect . . .”.

These laws required and directed that these recordations and
registrations be done by the various “clerks of the inferior courts
of common pleas and quarter sessions” who were “. . . appointed by
the council and assembly . . and commissioned by the governor . .
(New Jersey Constitution of 1776, Article XII).

The maintenance of those records was perceived as a supplemental
“judicial” function under the Constitution since the clerk of the
county served first as clerk to the court and then as clerk to the
citizens. A fundamental problem with the Constitution of 1776 was
that the three branches of government, executive (governor),
legislative (council), and judicial, were not three equal branches
in power and standing. Ultimately under that Constitution all
decisions of the judiciary, and all actions of employees of the
judiciary (clerks) were subject to review by the Governor and
Council. Thus, court orders could be overturned, ignored, or
enforcement of the orders refused by “politicians”. Through long
legal wrangling this situation was resolved in the New Jersey
Constitution of 1844. There, all three branches, executive,
legislative and judicial, were made equal, the right of final appeal
from the New Jersey ‘”Supreme Court” went to the U. S. Supreme Court
and not to the Governor and Privy Council. But most importantly, the
clerks were removed from the control of the executive and judiciary,
had their powers conferred upon them by the voters of the State of
New Jersey, were made constitutional officers, and served for fixed
terms. The Constitution of 1844 provided, in paragraph 5, that

Clerks and surrogates of counties shall be
elected by the people of their respective counties, at the
annual elections for members of the general assembly. They shall
hold their offices for five years.

As of 1844, clerks were recognized not as an employee or officer of
the courts, but as distinct constitutional officers. An examination
of the statutes does not show any statutory change in their role,
functions, duties and responsibilities. Their role and functions
were conferred by paragraph 11 of the Constitution of 1844 which
provided that:

Clerks of counties shall be clerks of the
inferior courts of common pleas and quarter sessions of the
several counties, and perform the duties, and be subject to the
regulations now required of them by law, unless otherwise
ordained by the legislature.

The clerks carried forward all the powers that they had previously
as “clerks” for the filing and recording of documents. But the
powers of recording, etc. were recognized as constitutional
conferment (by the people) and not mere law (by the legislation).

By 1848, the clerk is recognized as a constitutional officer, is
responsible through prior statutes for the recordation and filing of
documents affecting real property, and maintaining their prior
“judicial” and civil functions in their constitutional office. The
position of clerk was transferred from the section of the
Constitution dealing with judiciary in 1796 to the section of the
Constitution dealing with “civil officers” in the Constitution of
1844.

Other than very minor changes in the language, the role, duty,
responsibility and authority of the county clerks continued under
the Constitution of 1947 under Article XII, section 2, par. 2, which
provides:

County clerks . . . shall be elected by the
people of their respective counties at general elections. The
term of office of county clerks . . . shall be five years . . .
Whenever a vacancy shall occur any such office it shall be
filled in the manner provided by law.

In 1904 the provisions of N.J.S.A. 40:39-2 were adopted which gave a
county the option of creating a non-constitutional office of
legislative creation called the Office of the Register of Deeds and
Mortgages if the county had a population exceeding 185,000. By
amendment to this statute, it was subsequently increased to a
minimum population of 250,000. The counties of Essex, Hudson, and
Passaic now have an Office of the Register of Deeds and Mortgages.
Thus, a constitutional power was transferred to a non-constitutional
office without a constitutional amendment.

In one of the few decisions on the recording of deeds, Freeholders
of Middlesex v. Conger, 67 N.J.L. 444, 447 (N.J. Sup. Ct. 1902), its
stated that:

. . . Our first act which provided a system
for recording deeds was the act respecting conveyances of June
7th, 1799, section 10 of which provided for recording deeds,
properly acknowledged, with the secretary of state, and the act
also provided that the clerk of the Court of Common Pleas of the
county shall record in large, well-bound books, of good paper,
to be provided for that purpose, and carefully preserved, all
deeds and conveyances of lands Iying and being in said county
which should be delivered to him to be recorded. To which books
every person shall have access at proper seasons and be entitled
to transcripts from the same on paying the fees allowed by law.

In Freeholders of Middlesex, the County Board of Freeholders sought
to take custody of the real property records of the county and take
them away from the clerk. The court found, that:

The duties of the clerks of counties are
defined by the constitution, and they are, in addition to being
clerks of the Courts of Common Pleas and Quarter Sessions, to
perform the duties and be subject to the regulations now
required of them by law, until otherwise ordained by the
legislature. Const, art. 10, par. 11.

The rights and duties of clerks of counties
are therefore fixed by the constitution of 1844 as they then
existed by law, and are so to continue until otherwise ordained
by the legislature. (Freeholders of Middlesex, supra, at 446)

As the Court stated:

The Act of 1846 had made no change in the
duties or powers of the clerk which existed prior to 1844, and,
by the express provision of the constitution above cited, there
being no change in the law, whatever rights the clerk then had
or whatever duties were then required, still exist, unless they
have been changed in some way by the revision of the act
respecting conveyances in 1898.

A careful examination of that act fails to
disclose any change in the control of the clerk over the records
of deeds and mortgages. ld at 447.

The Court found that the administration of the existing property
records and recording of deeds was constitutionally conferred by the
people on the clerks and beyond the control of the freeholders. The
long historical role of the Clerks, as constitutional officers,
performing what is now a statutory function in recording documents
of title, establishes an area of expertise and unique function.