Facts on Local Court Records

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   New Jersey county clerks are responsible for land records, including deeds and mortgages, naturalizations, marriages (usually 1795-1840s), and various county court records. A few original county justice of the peace dockets are at the New Jersey State Archives. Estate matters are handled in the surrogate's and orphans' courts.

The state archives has minute books, indexes, and some case files for records of the prerogative court, 1830s-1900 (some scattered earlier); chancery court, 1780-1850 (some scattered back to 1743); and supreme court, 1681-1844 (indexes to 1947); court of errors and appeals dockets, 1869-1949 (some files prior to 1869); and records of the court of common pleas for some counties for the eighteenth and nineteenth centuries. Later records are with the Superior Court of New Jersey, R.J. Hughes Justice Complex, CN-971, Trenton, New Jersey 08625-0971. Some state court records for the 1800s were destroyed in a fire in 1980.

Records of federal courts in New Jersey are at the National Archives-Northeast Region, and some of these are on microfilm. These include the U.S. district court for 1789-1960 and U.S. Circuit Court for 1790-1911.

• Immigration: Most nineteenth- and twentieth-century immigration by ship was through the ports of New York and Philadelphia. There were some ship arrivals, however, directly in New Jersey, and federal passenger lists of these are available at the National Archives for Perth Amboy, 1801-37 (with gaps); Bridgetown and Cape May, 1828; Little Egg Harbor, 1831; and Newark, 1836. These are indexed in "A Supplemental Index to Passenger Lists of Vessels Arriving at Atlantic and Gulf Coast Ports," copies of which are at the National Archives/Mid-Atlantic Region and elsewhere.
• Naturalization: A search for nineteenth- and twentieth-century naturalization records should usually begin with the county clerk. A guide to these records for 1702-1886 was prepared by the WPA (Newark: New Jersey Historical Records Program, 1941). U.S. district court naturalization records for Camden, Camp Fort Dix, Newark, and Trenton, for various periods 1838 to 1981, arranged alphabetically or indexed are at the National Archives/Northeast Region.
  For the 1700s and 1800s, naturalization records are at the New Jersey State Archives, where there are also microfilms of many of the county records covering to 1906. It is important to keep in mind that many New Jersey residents may have become naturalized or at least filed a declaration of intention in New York City or Philadelphia if they stayed long enough in those port cities before settling in the Garden State.

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.

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Facts on Local Probate Records

   As in New York, the county court with jurisdiction over estates is called the surrogate's court (where the modern petition for probate is called the "complaint"). A typical "Surrogate's General Index," however, refers to docket books, where a summary of the action on an estate is entered, with reference to the estate file and to the record volumes. Depending on the action, some information will be found in orphans' court records. Also with the county surrogate (and usually with the county clerk as well) are records of divisions or partitions of lands that include descriptions and often maps showing how the real property of a person who died intestate was divided among his or her heirs. These records have been published for the following counties: Essex (1793-1881), Middlesex (1780-1870), Morris (1785-1907), Somerset and Hunterdon (1809-1904), Sussex (1789-1918), and Warren (1824-1924).

In New Jersey, original wills and inventories up to 1901 are on file at the New Jersey State Archives and are identified through Index of Wills, Inventories, Etc. This set is arranged by county and then alphabetically by name of the estate, with separate sections for wills proved in the prerogative court (precurser to the surrogate's courts) and unrecorded wills. Each estate has a number that relates to the file at the state archives, where these records can be examined on microfilm. Note that this index does not cover estate records in the county surrogates' courts. From 1901, original wills and inventories are filed with the Clerk of the Superior Court, Hughes Justice Complex, CN-971, Trenton, NJ 08625-0971.

By a law of 1784, orphans' courts were established with jurisdiction over estate matters, which until that time had been the responsibility of the prerogative court (the prerogative became an appellate court). Surrogate's courts were established in 1804, but action on estates should also be checked in orphans' court records. Prior to 1804, estates were handled in the proprietary capitals of Perth Amboy, East Jersey, and Burlington, West Jersey, but the records were sent to Trenton after it became the capital in 1790.

If an estate is not found in the indexes mentioned above, there still may be some record of it at the county level. The recorded wills and inventories, as well as the original and recorded bonds, accounts, guardianships, and other estate papers, will be found in the surrogate's court. Many of these county records have been filmed and are available at the state archives. Some colonial New Jersey estates may not be found either in Trenton or in the counties because they were proved in New York, Pennsylvania, or Delaware, and conversely some estates for these adjacent colonies were proved in New Jersey.

History of the Surrogate's Court Office
In New Jersey, the Surrogate's function has its beginnings in the earliest part of our colonial history. Since so much of our country's most fundamental legal offices can find their origins in the laws and practices of England, it is not surprising to know that the office of Surrogate can be traced back to when the Church of England had the duty of probating wills. When the Bishops were busy and needed assistance in handling the estates, they would appoint Surrogates to take their place. The word "Surrogate" is taken from the Latin word "Subregare," which means substitute.

The British Governor of the colony of New Jersey had the responsibility for probating all wills and establishing the administration of all estates in the colony. In 1683 and 1698, statutes were enacted which required wills and letters of administration to be entered in the colony's public register. By the year 1693, the Governor of the colony of New Jersey had appointed the first "Surrogate" for East New Jersey as the Governor's appointed deputy. In 1713, wills were required to be proved and entered in one book of records and registered. (The Bergen County Surrogate's Court currently stores and maintains wills dating back to 1714).

When East and West New Jersey were combined in 1720, the Governor appointed the first Surrogate covering the entire colony of New Jersey. From 1720 through 1767, the colony was serviced by a number of Deputy Surrogates appointed by the Surrogate. For several of those years, Bergen County was served by more than one Surrogate at a time. In 1767, the Governor appointed one Surrogate for all of Bergen County.

In 1822, the laws in New Jersey were amended, granting the state legislature the power to appoint the County Surrogate. However, in 1844, the New Jersey Constitution prescribed that the Surrogate was to be an elected, independent constitutional officer in the county, no longer to be regarded as a deputy of the Governor or the appointee of the legislature. The Constitution of 1844 provided that the Surrogate was to be elected for a five-year term by the people of that county.

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Tips for General Court Records

Excerpts From the Book "Family History Made Easy"

   Even today, few people escape mention in court records at some time during their lives as witnesses, litigants, jurors, appointees to office, or as petition signatories. However, Americans of a few generations ago also expected to attend local court proceedings when they were in session.
Arlene H. Eakle, Ph.D. “Research in Court Records”
In The Source: A Guidebook of American Genealogy

   American court files mirror U.S. history. Buried away in courthouses and archives everywhere are the dreams and frustrations of millions of citizens. The chances are great that your ancestors have left a detailed record of at least some aspects of their lives in court records.

   Most of us don’t think of court records as the rich source of personal history that they are. But America’s English heritage established a tradition of court processes in which the people have a right to participate actively—and we always have. With relative freedom from royal supervision and with court enforcement of religious as well as civil laws, American courts tried many matters that were not subject to court action in other parts of the British empire and that are now considered too minor to warrant criminal action.

   When a person dies, every state has laws that provide for public supervision over the estate that is left, whether or not there is a will. The term “probate records” broadly covers all the records produced by these laws, although, strictly speaking, “probate” applies only when there is a will.

   Family historians use probate case files far more than any other kind of court record. Probate case files are logical sources because they tend to include so much personal data, and because Americans have depended on the courts to settle their estates since North America was colonized. According to Val Greenwood in his Researcher’s Guide to American Genealogy, “All records which relate to the disposition of an estate after its owner’s death are referred to as probate records. These are many and varied in both content and value, but basically, they fall into two main classes: testate and intestate” (page 255). Probate case files generally provide names, addresses, and biographical data for the deceased, but frequently provide the same information for other relatives named in the papers. Relationships, maiden names of wives, married names of daughters, past residences, and place of origin in a native country are just a few of the details that can be discovered in probate files. And probate files can be found in courthouses and archives across the United States.

   When requesting probate information from the county clerk, it is important not to limit yourself by asking for a person’s “will.” The clerk will usually take you at your word and not copy other papers in the probate file that may have equally important information if there is no will.

   Even if your ancestor is not mentioned in a probate case, consider all of the other procedures which might have resulted in him or her appearing in court records:

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