On Friday evening November 5, 1943, Justice Jackson spoke in Philadelphia
at a meeting of the New Sweden Historical Association and the Philadelphia
Bar Association. His topics included colonial court history in New Sweden
and Pennsylvania, Sweden and its people, American judicial independence, Nazi
Germany and its judiciary. Jackson’s speech subsequently was published
in XV Pennsylvania Bar Association Quarterly 122-27 (Jan. 1944).
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Swedish Contributions to Our Law
By Justice Robert H. Jackson
Associate Justice, Supreme Court of the United States
Philadelphia, PA
November 5, 1943
Three centuries make only a short span in the long national life of Sweden,
but they twice measure the entire national existence of the United States.
Our annals are concentrated in so few years that our interest in particular
events sometimes appears extravagant to older peoples with longer histories.
An event almost unnoticed in Sweden was the establishment in 1643 by Swedish
authority of a court of justice on the banks of the Delaware. But it was an
auspicious event in the New World. Channels through which the struggling settlements
could draw upon the established legal cultures and experiences of the old
world were badly needed on these frontiers of civilization. Colonial courts
were among the first institutions to fulfill this need. It was their task
to reexamine the legal traditions of European fatherlands and by selection
and adaptation to unprecedented conditions build up a body of American law.
The Scandinavian settlement was made by Swedes and Finns, who comprised the
Sweden of that day. It occupied a small part of the rich and varied area that
now is Pennsylvania. Its existence under Swedish rule lasted only a short
time. The settlement then lived under several flags and forms of government
before the United States was born. Its contribution of particular laws and
procedures to our present law would be difficult to trace amid competing influences.
But we may discern in the philosophy of the founders of that first court much
that was prophetic of the kinds of institutions that this continent was destined
to create and foster. The Swedish spirit is shown by an instruction given
a decade later to Johan Rissing, sent to aid the government of the colony.
It reads:
Since law and right is considered and held to be one of the principal things
among all people for [the preservation of] peace and good order, therefore
he shall, together with the governor, appoint such persons there, who will
know how to judge according to the Swedish law and licit custom, in order
that right and righteousness may have their course in the land.
When Johan Printz became Governor of the colony in 1643, he was invested with
judicial as well as executive powers. The Swedish law and custom was to be
followed as far as possible. He was authorized to inflict punishments for
crimes by fines, imprisonment or death, "but in the regular manner only"
and after full examination and inquiry with the assistance in the trial of
men to be selected from the principal and wisest inhabitants.
Printz established a formal court with stated session. It seems to have had
considerable work. He was judge in most cases, assisted by a body of men,
about twelve in number, and they heard the evidence and together decided the
case. Printz ran into troubles as a judge. His judgments, like those of many
a later judge, did not please everybody. Some of the settlers presented bill
of grievances, charging that they "were at no hour or time secure as
to 1ife and property" and that he passed judgments in his own favor against
the opinions of the jury. The petition stirred the wrath of the Governor,
who promptly arrested, tried, convicted, and executed his leading critic on
a charge of treachery. This seems hardly convincing that the criticisms were
groundless.
It is not easy to appraise Printz's judicial services against his times and
vexations. But Dr. Johnson recites in his history of the colony two items
which seem greatly to the credit of Printz and to the legal tradition of Sweden,
which he represented, if but crudely.
Intricate cases arose, and Printz several times sought to have sent to him
"a learned and able man to administer justice and to attend to the law
business." Even in his colony of a few hundred people Printz found that
he could not administer justice "in the regular manner only" and
"according to the Swedish law and licit customs" by extemporizing
judgments under the impulse of the moment. He appears to have felt that his
own lay judgment needed to be steadied and his mind enlightened by reference
to the accumulated learning and experience of others. Printz recognized that
a system of justice under rule of law will not function uniformly without
a legal profession.
But even more comprehending and statesmanlike was Printz's reason for asking
professional help. He said it was "difficult and never ought to be that
one and the same person appear in court as plaintiff as well as judge."
I need not point out to members of the legal profession the eternal verity
of this statement.
But the date of this utterance is as impressive as its insight. It comes to
us out of the 1600's like a flash of lightning across a dark sky. The world
was then in the chaos of the Thirty Years' War. Gustavus Adolphus, the great
leader who planned the colony of New Sweden but did not see it founded, had
fallen, leading the liberal western world against reactionary and autocratic
forces which threatened its extinction. Printz's declaration was made a half
century before John Locke published his famous Treatise on Government in which
he espoused the philosophy that judicial power should be independent of executive
policy. It was made a century and a half before Locke's writings bore fruit
in our Declaration of Independence. It was made before the struggle of the
English people against their kings ended with a victory over arbitrary power.
That struggle in fact had only begun. In 1612, James I called the famous conference
of England's judges and advised them that he might take any cause he pleased
away from them and decide it for himself. Lord Chief Justice Coke bluntly
denied such right and told the King that he was "under God and the law."
It took nearly a century of struggle to make Coke's statement good.
Such statements as those of Printz and Coke are not often instances of isolated
individual illumination. These sentiments well up in a man because they are
implicit in the experience and discipline of the people from whom he came.
These men were giving voice to convictions widely but perhaps inarticulately
held in common by English and Scandinavian peoples. They both represent a
tradition embodied in our Declaration of Independence and in the principles
upon which our new government was founded. One of the difficulties of identifying
the influence of New Sweden upon our institutions is that Swedish contributions
have great similarity to the pattern brought from England, and for good reason.
Sweden's early history is not unlike that of England, which indeed was substantially
influenced by the bold, blond men from the Scandinavian countries who sometimes
came to her shores without invitation and remained without welcome. Both national
governments emerged from a violent contest for power between the Crown and
nobility, and both saw a constant struggle by the people for political and
religious freedom. In neither of these lands were the people oppressed by
their kings or their nobility to the same extent as people in many other nations.
The doctrine of the divine right of kings never gained a foothold in Sweden
and gained but a temporary one in England. Many of the Swedish kings were
elected by the people—a heritage from Viking times and this custom repudiated
all assumptions of divine right. In Sweden the law, not the King, had divine
sanction and he was subject to and below the law.
Swedish law, which New Sweden was commanded to follow, has reflected in its
development the outstanding characteristics of the Swedish people. They possess
an in-born love of freedom—religious and political. Serfs are unknown
in Swedish history, and the Swedes are so incorrigibly independent that of
all Europe they alone live in a land never occupied by a conqueror. Liberal
in the sense of being tolerant of change and receptive to improvement, they
are conservative in preserving a continuity with the past. The Swede is typically
tolerant and rarely attempts to suppress views that differ from his own. He
is industrious, and work is necessary to his happiness. He is a confirmed
individualist, yet none has proved so capable of teamwork in voluntary cooperative
efforts and enterprises. He is intensely religious, and he has profound respect
for the personality and individuality of every human being, whether he is
in humble or in high circumstance. He does not believe in or encourage great
disparities in wealth or worldly goods. These traits have left their mark
on Swedish history and on many American communities where the Swedes have
assumed leadership. I have had occasion to see something of Swedish justice
in Sweden and to know the spirit of the Scandinavian as a juror and official
when transplanted to this country. No man is more innately just and tolerant,
none more patient to hear both sides, none more dispassionate in judgment.
When, however, we go far back in history to appraise the contributions of
a migrant people to the great stream of thought which we call our law, we
must seek for the spirit they imparted to the law rather than for specific
laws. The same institution or document may in action be put to very different
ends in the hands of those whose spirit differs. Whatever of difference exists
today between the Constitutions, laws, and institutions of Sweden and the
United States is a matter more of form than of substance. Such is the similarity
of her spirit with our own that nowhere else will an American feel more at
home away from home. Both countries are trying to govern men and their relations
by rules of law and not by the whim of those in seats of power. In any land
where this is done a just man may feel secure and free.
But we in America—and I do not think we were alone in the mistake—imperiled
our heritage of freedom by taking its safety for granted. As free people we
went about our daily lives thinking whatever we did think, saying what ever
we wished to say, working at tasks of our choice, worshipping God, each in
his own way. When on the eve of his invasion of the Low Countries Hitler declared
that upon the battle then beginning depended the future of Europe for a thousand
years, most of us hardly knew what he meant.
We know now. The "New Order" would break down every independent
judicial protection of the citizen's freedom against executive power. Only
recently Dr. Rothenberger, Secretary of State of Germany, has admitted a “crisis
in the field of justice." He blames German judges who, as he wrote, "have
not succeeded in gaining the confidence of the Fuhrer and the Party."
He recommended pushing the judiciary still further "into the background"
but admitted that by such a move "the present outcry about lawlessness,
arbitrariness, legal insecurity, etc.," might be raised by still larger
circles. This complaint about the judges confirms reports from other sources
that among responsible classes the most resistance to Hitler and Nazi Party
supremacy has come from the professional judges and men of the law. It lifts
up our hearts to know that even in Germany, though the lights of freedom and
decency burn low, they are not extinct; and that it is men of our profession
who tend them.
It is hard for free people in America, in England, or in Sweden to comprehend
this authoritarian philosophy. Nor can we put ourselves in the place of those
who live under it and who know not by what words or acts or attitudes they
may displease those in power, nor in what hour they may without hearing, or
proof or stated caused be silently hurried off to concentration camp. Nor
can we measure the degradation that such undermining of a man's sense of security
inflicts on his dignity and personality. We are happy that this evil system
nears collapse.
The waning hour of Nazi and Fascist power is an appropriate one in which to
recall the establishment three hundred years ago in New Sweden of a court
dedicated to the purpose "that right and righteousness may have their
course in the land." We renew tonight our dedication to that old ideal,
which still remains our own.