History of the County Clerk's Office
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.