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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
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, aná a powder horn with copper mountings, valued by her, the defendant at Al 28. Paid to plaintiff in money f 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.
Deft. says his beer is ready. Plf. denies, that the beer is ready, and enquires if it be allowable to mix strong with small beer, and says the beer is not fit to be removed. Couwenhoven denies the same, and requests the Court to be pleased to test the same after adjournment of the session and then decide. Parties being heard, Jacob van Couwenhoven was ordered to pay Plf. the residue according to contract and obligation; And the beer having been tested after adjournment of the Court the same was pronounced good. The Plf. was therefore ordered to receive the same."1
Would Professor Wigmore call this autoptic profference?
As in the other Dutch settlements the principal prosecuting officer of the district was the schout whose duties combined those of a sheriff and district attorney; he convened the justices' courts and executed the orders of the states-general and officials of the company. Where local courts were established the justices were known as schepens. Their jurisdiction extended to the rendition of judgment for sums under one hundred guilders. In cases exceeding that amount the party aggrieved was allowed an appeal to the director general and council of the New Netherlands. The schepens also had authority to pronounce sentence in criminal cases subject to appeal.2
In 1656 the Dutch India Company, being deeply in debt and compelled to obtain aid from the city of Amsterdam, transferred to that city a portion of their possessions on the Delaware. This colony was called New Amstel, special inducements were held out to emigrants, and a town government was established consisting of a schout, three burgomasters and five to seven schepens, a formidable body for the government of a village of less than five hundred inhabitants. Thence
1 Records of New Amsterdam Court, Vol. I, 358.
* O'Callahan's History of New Netherlands, Vol. I, 220; VII Pennsylvania Archives (2d Series), 521, 528, 534; Hazard's Annals of Pennsylvania, 221.
forth the jurisdiction on the river was divided between the officials of the company and those of the city's colony.
Laws and ordinances were sent from New Amsterdam to the Delaware and there proclaimed for the general government of that territory. With occasional modifications, they were the same as prevailed in the older settlements on the Hudson, the ordinances of the West India Company, the civil law, the enactments of the states-general, and the customs of Holland.
In the matter of granting divorces the magistrates of the New Netherlands exercised a liberal policy in keeping with the doctrines of the Reformation, a policy that was not destined to survive the English Conquest.? Traces of this jurisdiction are found on the Delaware. Vice Director Beekman, writing to the director general under date of April 28, 1660, mentions a Finnish couple who lived together in constant strife: “The wife receives daily a severe drubbing, and is often expelled from the house as a dog. This treatment she suffered a number of years; not a word is said in blame of the wife, whereas he, on the contrary, is an adulterer; on all of which the priest, the neighbors, the sheriff and the commissaries appealed to me, at the solicitation of man and wife that a divorce might take place and the small property and stock be divided between them.”3
He asks for orders but the reply is not given.
In 1662, the Finnish priest Laers, or Laurentius, Carels, whose wife had eloped with Jacob Jough, married again before he had obtained letters of divorce from the council, performing the ceremony himself. He was condemned by the commissaries to pay a fine of two
1 Hazard's Annals of Pennsylvania, 220; V Pennsylvania Archives (2d Series), 459.
2 Howard's Matrimonial Institutions, Vol. II, 376. 3 VII Pennsylvania Archives (2d Series), 634.