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CLERK OF THE PEACE

The office of Clerk of the Peace was one of the most important in Delaware county government. He served as clerk to the Levy Court, Court of General Sessions, Court of Oyer and Terminer, Juvenile Court, and the modern Court of Common Pleas (New Castle County). He also issued many state and all county licenses and had responsibilities relating to elections and schools. Today, the Clerk of the Peace’s primary duty is to issue marriage licenses.

The position of Clerk of the Peace evolved from the clerk of the courts, an official who served as clerk of all county government in the early colonial period. In approximately 1702, the clerk of the courts position began to be titled “clerk of the peace and prothonotary of the court of common pleas.”1 Although there were separate titles and distinct functions, one person usually held both offices.2

The 1776 Constitution made several changes to the office. The President and Privy Council appointed the Clerk of the Peace and commissioned him for five years. A different person was selected to be prothonotary.3 After the 1792 Constitution, the Governor appointed the Clerk, although the Governor or both houses of the legislature could remove him from office on conviction of misbehavior.4 The position was made an elective office by the 1897 Constitution. The Clerk continued to be commissioned by the Governor, but his term of office was reduced to four years.5

One of the Clerk of the Peace’s most important duties was to serve as clerk of the Levy Court. The first reference to the position in the Delaware Laws (1742) required the Clerk to keep the minutes of the Levy Court proceedings.6 He also kept the books, papers, and other records of the court.7 He was required to transcribe the Levy Court minutes and deliver a copy to the Auditor of Accounts so that all accounts approved by the commissioners could be audited.8 He was also required to give transcripts of all accounts approved, all tax collectors appointed, and the amounts each collected to the County Treasurer so that the county accounts could be properly maintained.9 Clerks of the Peace for Kent and Sussex Counties continue to send transcripts of all allowances approved and amounts to be collected to the County Treasurer or Director of Finance.10 In 1901 the Kent and Sussex County Clerks of the Peace were designated as ex-officio members of the Levy Court and given the power to decide tie votes.11 The seal of the Clerk of the Peace was the seal of the Levy Court.12

As clerk of the Levy Court, the Clerk of the Peace had several responsibilities relating to taxes. He was required to file the assessors returns of property valuations with corrections made by the commissioners. A copy of this valuation of each person’s real and personal property was transmitted to the Speaker of the House.13 Abstracts of the assessment lists had to be certified to the auditor.14 The Clerk was required to make duplicates of the assessments and deliver them to collectors of each hundred.15 He was required to publish and display in public places a copy of the tax rates and assessments along with a notice of when the Levy Court sat as a Court of Appeal to hear tax assessment appeals.16 When the delinquent lists were returned by the lax collectors, the Clerk was required to deliver to the Sheriff an alphabetical list for each hundred.17 Today, the Clerks of Kent and Sussex Counties make tax collectors’ duplicates from certified assessment lists and delivers them to the County Treasurer or Director of Finance. The original assessment lists are retained by the Clerk.18

When the governments of New Castle and Sussex Counties reorganized (1965 and 1970, respectively), the Levy Court was abolished in those two counties.19 The Clerk of the Peace for Kent County continues to be the Clerk of the Levy Court.20

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As clerk of the Court of General Sessions and the Court of Oyer and Terminer, the Clerk of the Peace was responsible for keeping the dockets and all other records for each court.21 He was required to enter in the dockets all court costs and fees incurred for each case and transmit an abstract of all fines imposed to the State Treasurer.22 As clerk of General Sessions, he was to make a return of tavern licenses granted by the court and submit it to the auditor’s office.23 The Clerk was required to deliver to the Sheriff a certified copy of every sentence of death or other sentence in a criminal case and a copy of every order for sale of a convict unable to pay a fine. The Clerk had to report to the State Treasurer annually the sums due from the Sheriff on sales of convicts.24 The Clerk of the Peace and the Prothonotary selected grand and petit jurors to serve in the various courts.25 The Clerk had to keep attendance records of jurors so that an order for payment could be made to the Treasurer.26

The Clerk of the Peace served as Clerk of the Juvenile Court in New Castle and Sussex Counties. He was responsible for keeping the dockets, records, and proceedings of the court; issued subpoenas; and submitted an annual report to the Court of General Sessions on the children brought before the Juvenile Court.27 He lost these responsibilities when Juvenile Court was abolished and Family Court established. A 1927 law made the Clerk of the Peace the clerk of the Court of Common Pleas of New Castle County whenever it heard criminal cases.28 Now the clerk is appointed by the Common Pleas judges.29

Another major responsibility of the Clerk of the Peace was to issue various state and county licenses. The issuance of marriage licenses was an early responsibility and continues to be one of his most important duties today. The clerk received blank licenses from the Secretary of State and had to pay a set fee to the Secretary for each received. The Clerk of the Peace was authorized to appoint at least six Justices of the Peace in each county to distribute marriage licenses.30

Whenever application is made for a marriage license, the Clerk has to examine the applicants to ascertain eligibility for marriage and personal information (names and residences of applicants and parents, occupation, age, color, etc.) A 1911 law required that this data be recorded in a Marriage Record Book; licenses issued by Justices of the Peace were also recorded by the Clerk in this volume.31 Until 1903, whenever the Clerk issued a marriage license he also was required to take and file a marriage bond.32 When the State Board of Health was made responsible for registration of marriages in 1913, the Clerk of the Peace continued to dispense licenses but was required to notify the State Registrar of all that were issued.33 These requirements remain the same today with the Clerk recording all licenses issued in a Marriage Record Book.34

Merchants and manufacturers licenses were also issued by the Clerk of the Peace. Merchants were required to file with the Clerk a certificate which stated the aggregate value of goods on hand unless the business had stock worth less than two hundred dollars. Retailers had to pay a tax on each one hundred dollars of goods in addition to getting an annual license to conduct business.35 Manufacturers also had to file a statement of the aggregate value of all goods that the firm produced during the preceeding year before getting a license.36

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In addition to wholesale and retail dealers and manufacturers, inn or tavern keepers, keepers of eating houses, keepers of stallions or jacks, auctioneers, brokers, private bankers, foreign life and fire insurance agents, real estate agents, conveyancers, photographers, dentists, physicians, attorneys, laundries, pawn brokers, junk dealers, veterinarians, peddlers, brewers, fishermen who used gill nets or gill seines, optometrists, osteopaths, circuses, theatres, places of amusement, and gypsies were required to get a license.37 In the cases of private detectives and those who wanted a carry concealed deadly weapons, they had to make application to the Clerk of the Peace who in turn presented the application to the Court of General Sessions, and, if the court approved, the Clerk was issued the proper license.38 The Clerk of the Peace was required to make out a list of licenses issued and have it published in local newspapers.39 He also was to keep a book for each type of license and list alphabetically the name of every person or business to whom a license was issued.40 The Clerk was required to keep proper accounts of fees collected, and money collected was deposited to the credit of the State Treasurer or County Treasurer.41 Tax collectors were required to make a list each year of all persons and businesses in their hundred who were required to have a license and submit the list to the Clerk of the Peace. The Clerk then compared the list with those licenses that had been issued to track down deliquents.42

In addition to getting an annual license, physicians, dentists, optometrists, veterinarians, and chiropodists were required to register with the Clerk of the Peace. A book was to be used to record the registrations.43

In 1935 issuance of most licenses and collection of license fees became the responsibility of the State Tax Department.44 Pawnbrokers and junk dealers are still required to purchase a license in New Castle County.45

The Clerk of the Peace also had responsibilities relating to elections. He was required to compile each year an alphabetical list of white free male citizens, twenty-one years old and older, and deliver the list to the inspectors of elections in each hundred. Any citizen that had been naturalized had the word “naturalized” beside his name on the list. To keep track of those who had been naturalized, the Clerk was to keep a record book of certificates of naturalization.46 After a general election each inspector of election was to deliver to the Clerk of the Peace the oaths signed by the inspector and judges of the election, two poll lists, an alphabetical list with notes of those who voted (later voter registration books), and election returns.47

Before an organization could be regarded as a political party, it had to represent at least one hundred citizens in the county. If the Clerk of the Peace had any doubts as to the number represented by any organization, he could demand a certificate of twenty-five voters (later changed to 250) belonging to such an organization.48 Nominations to candidates for governor, representatives, presidential electors, county, hundred, and district offices had to be certified to the Clerk of the Peace by the presiding officer and secretary of state party conventions or committees. After the slate of candidates was complete, the Clerk had the ballots printed and distributed to each inspector of election on the day preceding the election. After the election it was his duty to county and destroy all left over ballots but one which he preserved as a record along with a certificate and number of ballots counted and destroyed by him.49

A 1923 law required that applications for absentee ballots be sent to the Clerk of the Peace. He sent the ballot out, it was returned to him, and he in turn gave it to the inspector of elections in the proper district.50 In the same year they were required to furnish each registrar with a list of all persons convicted of a felony at the same time they furnished the registration book and papers.51 This was repealed in 1943.52

Beginning in 1941, the Clerk of the Peace gradually lost his election responsibilities. In 1941 he had to turn over the voter registration books to the president of the Board of Registration.53 Some election duties were transferred to the county Department of Elections in 1945, while by 1963 all general election functions performed by the Clerk were transferred to the Department of Elections.54

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Under the 1829 “Act for the establishment of free schools,” the Clerk of the Peace was given several responsibilities. The commissioners in each county who divided the county into school districts had to make a return to the Clerk of the number of schools in operation, number of scholars in each, teachers’ salaries, and an estimate of the number of children in each district. A return describing all the districts and noting the location for public school voters meetings was also filed. The clerk had to post in the most public place of each district and publish in newspapers a description of the district.55 The Clerk kept a record whenever property was transferred from one school district to another and if districts were divided or combined.56

The Clerk was responsible for advertising annual meetings of the school voters in each district. Proceedings of every meeting were sent to the Clerk to be preserved as a public record.57 After school elections, the names and addresses of school commissioners or members of the Board of Education had to be transmitted to the Clerk of the Peace who in turn furnished the same information to the Superintendent of Public Schools, Auditor of Accounts, and Trustee of the School Fund.58

A 1921 law to reorganize the public school system ended these school responsibilities of the Clerk. However, duties relating to school elections were added and continue to be his responsibility. Candidate nominations are filed with the Clerk, he has ballots printed, and provides other needed election supplies.59 The Clerk also must post and publish notices of upcoming elections.60 Poll lists compiled by school election officials are filed with the Clerk after the election, kept for one year, and then destroyed.61

In addition to those already mentioned, the Clerk of the Peace was required to keep several other records. He was required to file the bonds of the County Treasurer, constables, tax collectors, comptroller, and pawn brokers.62 Beginning in 1873 the Clerk kept a docket to register dogs. Dogs that were registered were then considered personal property and violators could be prosecuted.63 Other responsibilities included the authorization to destroy certain records after five years, including petitions for keeping taverns, certificates for retailers of goods, election poll lists, individual bills settled and paid by the county, and other papers judged not to be of permanent value. This destruction was to occur under the supervision of the Prothonotary and the Register of Wills.64

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1 Minutes of the Provincial Council (Philadelphia: J. Severns, 1853), 3:338, as quoted in Delaware Historical Records Survey, Works Progress Administration, Inventory of the County Archives of Delaware: No. 1, New Castle County (Dover: Public Archives Commission, 1941), p. 82.

2 Delaware Historical Records Survey, p. 82.

3 1776 Constitution, Art. 12.

4 1792 Constitution, Art. 8, sec. 5. 1831 Constitution, Art. 7, sec. 4.

5 1897 Constitution, Art. 5, sec. 22.

6 1 DL, ch. 52.

7 6 DL, ch. 278.

8 3 DL, ch. 5.

9 1 DL, ch. 52. 6 DL, ch. 278.

10 9 Del. Code, Sec. 9409.

11 22 DL, ch. ch. 52, 54.

12 6 DL, ch. 278.

13 2 DL, ch. 98.

14 7 DL, ch. 187.

15 1 DL, ch. 52.

16 Ibid.

17 14 DL, ch. 371.

18 9 Del Code, Sec. 9410.

19 55 DL, ch. 85. 57 DL, ch. 762.

20 9 Del. Code, sec. 9405.

21 4 DL, ch. 163. 8 DL, ch. 106.

22 6 DL, ch. 347. 7 DL, ch. 92.

23 3 DL, ch. 34.

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24 6 DL, ch. 362.

25 10 DL, ch. 415.

26 4 DL, ch. 158.

27 26 DL, ch. 262. 38 DL, ch. 197.

28 35 DL, ch. 220.

29 59 DL, ch. 133.

30 3 DL, ch. 61.

31 26 DL, ch. 244.

32 6 DL, ch. 330. 22 DL, ch. 281.

33 27 DL, ch. 84.

34 9 Del. Code, sec. 9413-9415.

35 6 DL, ch. 132.

36 14 DL, ch. 24.

37 3 DL, ch. 61. 7 DL, ch. 182. 10 DL, ch. 87. 15 DL, ch. 18. 20 DL, ch. 40, 374. 21 DL, ch. 167. 22 DL, ch. 22. 23 DL, ch. 75. 24 DL, ch. 139. 25 DL, ch. 8, 113. 26 DL, ch. 16. 27 DL, ch. 24, 25.

38 22 DL, ch. 334. 26 DL, ch. 275.

39 10 DL, ch. 48.

40 27 DL, ch. 54.

41 1915 Del. Code, sec. 1286-1287.

42 15 DL, ch. 18.

43 22 DL, ch. 22. 25 DL, ch. 113. 29 DL, ch. 56. 33 DL, ch. 66.

44 40 DL, ch. 30.

45 24 Del. Code, sec. 2303.

46 5 DL, ch. 233.

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47 6 DL, ch. 257. 19 DL, ch. 38.

48 19 DL, ch. 37. 27 DL, ch. 65.

49 19 DL, ch. 37.

50 33 DL, ch. 103.

51 33 DL, ch. 121.

52 44 DL, ch. 111.

53 43 DL, ch. 121.

54 45 DL, ch. 154. 54 DL, ch. 69.

55 7 DL, ch. 99.

56 Ibid. 25 DL, ch. 83.

57 7 DL, ch. 99.

58 21 DL, ch. 67.

59 32 DL, ch. 160.

60 14 Del. Code, sec. 1074.

61 33 DL, ch. 81. 14 Del. Code, sec. 1082.

62 1 DL, ch. 52. 5 DL, ch. 179. 6 DL, ch. 278. 19 DL, ch. 26. 20 DL, ch. 374.

63 14 DL, ch. 415. 16 DL, ch. 48.

64 14 DL, ch. 38.

RLG, January 5, 1989