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THE EARLY COURTS
For more than two hundred years the courts of province and state have administered justice to the inhabitants of Pennsylvania. Created under the peculiar conditions surrounding the foundation of the colony, subjected to numerous legislative experiments, their organization and practice present many peculiarities that can only be understood by a reference to their history. This history has been sadly neglected owing partly to the paucity of material, and partly to lack of interest. The founders were more bent on developing the resources and organizing the administration of the great territory that had come under their control, than on preserving the records of their proceedings for the benefit of posterity, while their immediate descendants, living in an uncritical age and possessed with a passion for rhetoric to the exclusion of history, carelessly permitted the records of the preceding generation to be scattered or ruthlessly destroyed. Documents that would now be regarded as precious memorials of the past, and that would throw valuable light on our early institutions, were used to feed the fires in the old courthouse. Fortunately, sufficient fragments
1 Cromwell v. The Bank, 2 Wallace, Jr. Reports, 569 (1853), at page 589.
have escaped and found their way into the collections of individuals and societies to enable us, with the aid of the state archives, to present, if not a picture, at least a sketch of the judicial organization and procedure in a period which the rapidity of our national development has made more remote in thought than in time.
As the firs; organized settlements in th territory now ncluded in the state of Pennsylvania were those of the Swedes and the Dutch, so the first courts of justice were established under their auspices. To give a complete account of their administration would involve a ted ous narrative of the political vicissitudes of these unsuccessful colonies, which never developed to the point of establishing lasting institutions.
In fact, throughout their stormy history the judicial and executive functions of the various governors and local officials are scarcely distinguishable.
The first Swedish settlement was hardly more than a trading post, and, if a court in the proper sense of that word existed, it must have been established by the governor, John Printz, who arrived at the colony on the Delaware in 1643 with instructions to “decide all controversies according to the laws, customs and usages of Sweden” and in all other things to "adopt and follow all the laudable manners, customs and usages of the kingdom of Sweden,” the crown of which was then worn by Christina, the daughter of the great Gustavus Adolphus.
Printz established the seat of government on the island of Tinicum, but he must have found his duties onerous, for he wrote several times to obtain the services of a learned and able man to administer justice and attend to the law business. The territory, however,
1 “I have several times solicited to obtain a learned and able man to administer justice and attend to the law business." Report dated February 20, 1647, to the West India Company. Records of Court at Upland, Introduction, p. 29; V Pennsylvania Archives (2d Series), 766.
passed into the possession of the Dutch West India Company, and Swedish law ceased to be a factor in the development of Pennsylvania, although the Swedes were permitted to retain their own magistrates, under the supervision of the officials of their conquerors.1
In 1655, a vice director hip of the "South River" was created, and Jean Paul Jacquet, a former agent of the company in Brazil, was appointed to the office.? Andries Hudde, who had for some years managed the earlier Dutch settlement on the Delaware, was named as secretary, a commissary was appointed, and these, with two others, formed a council for general administration, as well as a court for the trial of civil and criminal cases, with right of appeal in all important matters to the director and council in New Amsterdam. The minutes of this court from December, 1655, to March, 1657, have been preserved, and afford some interesting information upon the methods and procedure of the Dutch justices, as well as the social condition of the colonists. Actions for the recovery of small debts are most frequent on the civil side, while on the criminal side, complaints for minor breaches of the peace are the principal matters disposed of. The striking features of these trials are the mild and paternal attitude of the court, the efforts made to obtain amicable adjustments of disputes, the merciful treatment of offenders, and the leniency to unfortunate debtors.
The following case, taken from the minutes of the court, July 7, 1656, is interesting as an early attempt to apply the principles of set-off:
1 VII Pennsylvania Archives (2d Series), 511, 531. policy seems to `have alarmed the home authorities. Pennsylvania Archives (2d Series), 555.
2 Hazard's Annals of Pennsylvania, 205.
“Jan Flaman appears before the council against the wife of Tobias Willeborgh, and demands payment for a shirt lost by her, the defendant, and for passage from the manhattans hither, viz. for the shirt..
14 for her passage & freight 16
30 The defendant says, that she lost on the voyage, being wrecked with the bark, a chest containing four shirts, one coat of red duffel, one underwaist coat, and a powder horn with copper mountings, valued by her, the defendant at fl 28. Paid to plaintiff in money fl 4 From above
32 The defendant is told that the freight shall be set off against her lost goods; in regard to the shirt, she is ordered to pay plaintiff four guilders 15 stivers.” 1
A case heard on August 2, 1656, gives new and interesting grounds for a continuance:
“Before the council appeared Jacob Crabbe against Robert Martyn and complained that he Robert Martyn had shot and killed his, the plaintiff's pig. Defendant answers that fourteen days ago he entreated the plaintiff to pen up his hogs as the same did great damage to his corn. Plaintiff upon being asked what he wanted, answers, 'Payment for his pig.' It was proposed to the parties, that plaintiff shall take the pig, as it is still living, but that if it should die, each one shall keep his action in the law unprejudiced.2
Perhaps it may not be considered out of place to refer to a case tried September 13, 1655, in New Amsterdam as illustrating the pleasant side of judicial office in Knickerbocker days :
"Jan Hackius Plf. v/s Jacob van Couwenhoven Deft. The Plf. demands paymands of 1150 fl. on account of a promissory note, dated July 1, 1655, payable in beer and distilled liquors.
1 New York Colonial Documents, Vol. XII, 149. 2 New York Colonial Documents, Vol. XII, 150.