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& Liberal Theory, Stoner ¬nds an early precedent for judicial review in Coke™s interpretation
of Doctor Bonham™s Case and thereby makes an argument for the compatibility of change with
the common law tradition. However, like Pocock, Burgess, and McIlwain, Stoner does not ¬nd
evidence of a formal mechanism for change during this period. On more general aspects of early
modern Anglo-American constitutionalism, see also Thomas C. Grey, “Origins of the Unwritten
Constitution: Fundamental Law in American Revolutionary Thought,” Stanford Law Review
vol. 30, no. 5 (1978), 843“93; Gordon Wood, “State Constitution-Making in the American
Revolution,” Rutgers Law Journal vol. 24 (1993), 911“26; Zuckert, Natural Rights.
84 Quaker Constitutionalism in Theory and Practice

The common law was, in the ¬rst place, unwritten in its entirety. Second,
it was divided into essentially three sections: the fundamental law, only some
of which was written in the Magna Carta; statute law, which was written,
but not collected in one place or catalogued; and custom, which was entirely
unwritten. All the laws were said to be based on one of two kinds of reason “
arti¬cial or practical. The former, the basis of statute law, must be obtained
by arduous study and was thus comprehendible only to the preeminent legal
scholars. The latter, known in general, was the traditions and customs that
had developed in the populace over centuries and had proven reasonable over
the course of history. The problems were several: First, no one could possibly
know exactly what the law was at any given time or place. Second, given these
characteristics of the common law, there could be no formal mechanism for
change. This is not to say, however, that change did not happen. All common
lawyers acknowledged that it did. But those adhering to the ancient model of
the constitution agreed that change was dangerous and should be avoided. The
law could be formally changed by enacting statutes or through the courts “ the
arti¬cial perfection of reason “ but this was dangerous in two ways.86 First, it
was too easy; it could potentially happen so quickly “ at the whim of an individ-
ual or individuals “ that there was a tremendous risk of instability.87 Second,
even if new statutes were enacted, this would not necessarily change the law
in practice “ people™s habits change only very gradually. In essence, moreover,
change is meaningless “ or, at best, a “legal ¬ction” “ unless it is somewhere
transcribed and legitimized so it can be recognized by all and obeyed.88 And
¬nally, because of the danger in changing laws, precedents were extremely
important. Once established, however bad, the law was thus legitimized and
could remain in place for decades, if not centuries, doing irreparable harm to
the polity. The response of those adhering to the ancient constitution, then, was
to avoid change; and their caution was virtually paralyzing.89 It was better, the
common lawyers believed, to endure bad laws rather than to risk chaos by
trying to change the old ones.90
Thus change to resist oppression under this rubric was limited and prob-
lematic. Ultimately, most Englishmen believed as Quakers did, that the gov-
ernment was ordained by God, and thus irresistible. Therefore, although it
was bad if the government, either the king or Parliament, overstepped its con-
stitutional bounds, this did not negate the right of the government to do so.


86 See John Underwood Lewis, “Sir Edward Coke (1552“1633): His Theory of ˜Arti¬cial Reason™
as a Context for Modern Basic Legal Theory,” Law Quarterly Review vol. 84 (1968), 330“42.
87 McIlwain explains that early in England™s legal history, law was “judge-made.” Then,
“[m]agistrates could stretch it to cover new circumstances by an untrue assumption of fact
which no one was permitted to disprove” (Constitutionalism, 54). Legal change later became
part of the legislative process.
88 Ibid., 53“55.
89 See McIlwain™s discussion of stasis as the result of the fear of revolution (ibid., 38“39).
90 See also Kramer, The People Themselves, 16.
Quaker Theory of a Civil Government 85

There was little distinction between the fundamental principles of the unwrit-
ten constitution and the positive law, which in turn made it dif¬cult to draw
the boundaries of the resistance. Although a limited amount of resistance was
practiced, the possibility for change was restricted. Petitioning, nonresistance,
suffering under the oppression, and continued deference to the civil author-
ities were usually thought to be the appropriate responses to governmental
oppression.91 Many writers agreed that, in theory, constitutional limitation
through peaceful means to secure a balanced government was both possible
and desirable. Neville, Harrington, and Ludlow suggested that government
ought to be limited and changeable. Most signi¬cantly, Ludlow suggested the
idea of a supreme court.92 Still, Englishmen generally believed that preserving
traditional liberties meant preserving the constitution in its entirety.93
The “modern” view of a constitution is equally problematic in regard to
change, although the solution was much simpler. It was like the ancient con-
stitution in that there was no solution to the problem of a parliamentary
despotism or the tyranny of a divine right monarch, but with one exception.94
It held that when a government oversteps its bounds, it acts unconstitution-
ally and thus forfeits its right to any obedience. In the view of authors such
as Locke, Tyrrell, Sidney, Trenchard, Molesworth, and American Whigs, the
entire government may then be legitimately overthrown by revolution.95 It was
a contractual relationship between ruler and ruled, which was broken if either
party reneged on its obligation. Some, such as Cato, suggested ways to limit
the government such as frequent elections, term limits, or the exclusion from
of¬ce of MPs who had court employment, but there was a disjuncture between
the fundamental principles, the constitution, and the government that made
the latter two dispensable.
The main question that remained unanswered until popular sovereignty
became an accepted idea was whether any government could be legally limited
by something other than force.96 How could a constitution be both permanent

91 McIlwain, Constitutionalism, 3“6.
92 Robbins, “Algernon Sidney™s Discourses on Government,” 48.
93 McIlwain, Constitutionalism, 12. See also Burgess on avoiding deliberate change (The Politics
of the Ancient Constitution, 68“69).
94 Charles McIlwain, The American Revolution: A Constitutional Interpretation (Ithaca, NY:
Cornell University Press, 1966), 160.
95 This theory of revolution embraced by most Whigs grew mainly from reformed Calvinism. The
most thorough discussion of the Puritan theory of revolution is Michael Walzer™s Revolution
of the Saints: A Study in the Origins of Radical Politics (New York: Atheneum, 1976). In The
Foundations of Modern Political Thought: Volume Two: The Age of Reformation (Cambridge:
Cambridge University Press, 1978), Quentin Skinner disagrees with Walzer to some extent
and complicates the argument, writing that “the main foundations of the Calvinist theory of
revolution were in fact constructed entirely by their catholic adversaries” (321). Nevertheless,
he does agree that the right to resist was “Calvinist in its later development” (347). Kramer
agrees that the popular will to effect change was expressed through violence or threat of violence
(The People Themselves, 15).
96 McIlwain, Constitutionalism, 9.
86 Quaker Constitutionalism in Theory and Practice

and amendable?There was no means to stop the abuse, nor mechanism to
institute change.97 In the Glorious Revolution, for example, some agreed with
Locke that the English constitution had been abolished, while others tried to
legitimize the Revolution within the con¬nes of the ancient constitution and
preserve it in toto.98 Quakers would have agreed with both positions, but only
in part. The ancient constitution would remain, and signi¬cant reform and
renewal would take place within its framework.
For Quakers, legal change was the logical and inevitable result of their dis-
cernment process. Using Light instead of reason as the basis for their laws “
both fundamental and positive “ allowed them, unlike other Englishmen, to
believe change was not only inevitable, but also desirable as man strove for
perfection. The Light was a perfect guide. “The laws of this Kingdom,” said
Isaac Penington, “are given forth in the Kingdom from the Covenant of life,
which is made there in Christ . . . There sin is reproved, and everlasting Righ-
teousness manifested, in the Light which cannot deceive.”99 In other words,
God™s Light is always consistent and true. To this point, there is not much
practical difference with the common lawyers who believed in the difference in
a fundamental immutable law that came from reason and the changeable law
that came from reasonable custom. The key difference was this: Man, Quakers
believed, was fallible in his abilities to understand and follow the divine funda-
mental law. They would agree with Newton who wrote, “The errors are not
in the art but in the arti¬cers.”100 If they followed their reason alone, or even
reasonable custom that has allegedly proved the rightness of the law, “Men
many times,” warned Penington, “make Laws in their own will, and according
to their own wisdom (now the wisdom of the world is corrupt, and hath erred
from the guidance of God) and are not free from self-ends and interests.”101
Quaker John Crook explained that “outward Authority” was exercised prop-
erly when “the Principle of Reason [was] subordinate and subjected to the
Principle of Life, and did not take upon itself to govern without or against
it.”102
Of utmost importance was that God did not reveal his whole law to man
at once, but rather unfolded it in progressive revelation. Penington explained
that “He who is of counsel with the Lord, may know what he intends.”103
He summarized the Quaker position on man in relation to the law in a 1661

97 Ibid., 4; and B. Behrens, “The Whig Theory of the Constitution,” 43.
98 Pocock, “Radical Criticisms,” 34“35.
99 Isaac Penington, The Consideration of a Position Concerning the Book of Prayer . . . Likewise
a few Words concerning the Kingdom, Laws and Government of Christ in the Heart and
Conscience; it™s [sic] Inoffensiveness to all Just Laws and Governments of the Kingdoms of
Men (1660), 27.
100 Colin Maclurin, An Account of Sir Isaac Newton™s Philosophical Discoveries (1748), cited in
Robbins, “Algernon Sidney™s Discourses on Government,” 71.
101 Penington, Consideration of a Position, 28.
102 Crook, An Apology for the Quakers, 8.
103 Penington, A Considerable Question, 5“6.
Quaker Theory of a Civil Government 87

tract entitled A Brief Account of What the People Called Quakers Desire in
Reference to Civil Government. They wanted

[t]hat no Laws formerly made, contrary to the Principle of equity and righteousness in
man, may remain in force; nor no new ones be made, but what are manifestly agreeable
thereunto. All just Laws, say the Lawyers, have their foundation in right reason, and
must agree with, and proceed from it, if they be properly good for and rightly serviceable
to Mankind. Now man hath a corrupt and carnal reason, which sways him aside from
Integrity and Righteousness, towards the favoring of himself and his own party: And
whatever party is uppermost, they are apt to make such new laws as they frame, and
also the interpretation of the old ones, bent towards the favour of their own party.
Therefore we would have every man in Authority wait, in the fear of God, to have
that Principle of God raised up in him, which is for righteousness, and not sel¬sh; and
watch to be guided by that in all he does, either in making Laws for Government, or in
governing by Laws already made.104

In waiting on God, an individual might at any moment receive a revelation
about the law that is entirely new and nonrational, but that could be seen by
most as irrational.
An account of a trial of thirty-two Quakers “for unlawfully and tumul-
tuously gathering and assembling our selves together, by Force and Arms, &c.
under pretense of performing Religious Worship, &c.” exempli¬es this doc-
trine of change. In challenging the statute upon which they were indicted, the
defendants proclaimed that not only did the statute “take counsel against the
Lord,” but also that “it was made in a time of ignorance, when that peo-
ple were newly stept out of Popery, but now there was more knowledge.”105
The law was thus meant to be changed based on new discoveries of God™s will.
The best example for Quakers of an ungodly law that had been accepted as
reasonable for centuries was the mixing of church and state. Penn™s revelation
said the combination of the two was unconstitutional, and his reason agreed.
For him, their separation was not only necessary, it was in keeping with divine
law and therefore with the fundamental constitution of England. “Religion,” he
insisted, “under any Modi¬cation is not part of the old English Government.”
He argued that mixing church law and civil law and making property holding
a means of maintaining religious conformity are “an Alteration of old English
Tenure” and a most dangerous innovation.106 Nonetheless it had become an

104 Isaac Penington, “A Brief Account of What the People Called Quakers Desire in Reference to
Civil Government” (1661), in Pennington™s Works (London, 1680), 327.
105 John Chandler, A True Relation of the Unjust Proceedings, Verdict (so called) & Sentence of
the Court of Sessions, at Margaret™s Hill in Southwark . . . [1662], 3, 5, in Quaker Tracts, vol.
5 (London, 1662).
106 Penn, England™s Present Interest Discovered, 31“32, 37. It was Penn™s tenacious advocacy
of liberty of that led his former Whig allies to suspect him of popery and Jacobitism at the
Glorious Revolution. While it does seem on the surface contradictory that such a zealous
supporter of rights and constitutionalism would collaborate with a papist, it is in keeping with
the Quaker agenda. Although Penn was a radical Protestant and supporter of the Whig cause,
he was also a politician who had James II™s ear. Penn was not a supporter of James himself, and
88 Quaker Constitutionalism in Theory and Practice

accepted part of English custom and law. Following from this, although tol-
eration was generally professed to be an ideal for England, most Englishmen
also believed that uniformity in opinion “ and hence an established church “
was the only way to preserve the state. Conformity to the Church was enforced
by various means, both by statute and custom, by of¬cials and commoners.
Quakers, who challenged the statutes and the practices, were considered to
be insane and subversive of government. Not only were they persecuted, but
more laws were passed on the same basis with the aim of eradicating them
entirely. Because of the divine revelation that religious dissent was constitu-
tional, if not legal, Quakers were keenly aware of the need for change in both
laws and customs and were especially suspicious of the latter, which was more
nebulous and evolved more slowly than legislation. In response to the reaction
of non-Quakers to the apparent irrationality of Quaker demands, Penington
counseled, “Therefore all people be still and quiet in your minds, and wait for
righteousness, for that is it which the Lord is making way for in this Nation,
and which he will set up therein; and he whose desire is not after that, and
whose interest lies not there, will ¬nd himself disappointed, and at unawares
surprised with what he expects not.”107 In other words, do not expect God to
conform to human reasoning.
In addition to this rejection of reason as the basis for law, which itself was
seen as a serious challenge to the government, Quakers™ use of language was also
troubling to contemporaries. As we have explored in the ¬rst chapter, they used
it to challenge civil society in numerous ways. Their refusal to use conventional
speech or ideas when discussing law itself amounted to subversion. Glenn
Burgess explains that the common law was a “structure of discourse,” and that
it possessed “hegemonic status. It de¬ned the appropriate sphere within which
other languages operated.”108 Although this hegemony had been fundamentally
undermined in 1649 with the execution of King Charles I, it was not yet
destroyed.109 In the Quakers™ refusal to use the language of natural law, as
well as the more obvious use of plain language, including not just thee and
thou, but also their advocacy of English rather than Latin in the laws and
courts, made contemporaries aware of their intention to establish an alternate
legal paradigm and that they were undertaking a well-organized campaign to
actualize it.
Through their theology and practice, then, Quakers found a way to contex-
tualize changes, evaluate them for soundness, and accept them “ or not “ as an

thus not a Jacobite, but rather he was in favor of what James could do and how he would do
it. Quakers were opportunists to a certain extent and would befriend even apparent enemies
if they believed it would help them achieve their primary end “ liberty through constitutional
means. Dunn presents a similar opinion in a discussion of Penn™s thought during this period
and his relationship to James II (Dunn, Politics and Conscience, 132“61).
107 Penington, “What Quakers Desire,” 15. Emphasis added.
108 Burgess, The Politics of the Ancient Constitution, 212.
109 Ibid., 223“24. Burgess goes on to discuss the Levellers™ rejection of the common-law language
of reason in favor of the more “abstract” basis of the Gospel (228“29).
Quaker Theory of a Civil Government 89

integral part of their political theory and a valid part of the legal and political
process. They believed that man was born innocent and was capable of perfec-
tion, but he was also capable of mistakes, sins, and transgressions of the law.
He might misstep when transcribing God™s law into a written constitution or
statutes. But in his relationship with God, he was never irredeemable. He may
change himself and return to the proper path. Just as the individual is salvage-
able, neither are his efforts at political arrangements hopelessly ¬‚awed. “There
is hardly one Frame of Government in the World so ill designed by its ¬rst
Founders,” wrote Penn, “that in good hands would not do well enough.”110
Therefore, man may also change his political arrangements while retaining the
constitution. On framing a government, Penington said, “That which is well
done will endure a review; and that which is ill done doth deserve a review,
that it might be amended: yea that which is of very great consequence may
in equity require a review.”111 With God™s guidance, man may recognize both
what is accurate and what is ¬‚awed in his interpretation. The laws, said Penn,
“are resolvable into two Series or Heads, Of Laws Fundamental, which are
indispensable and Immutable: And Laws Super¬cial, which are Temporary.”
The former, of course must be adhered to and executed in a “punctual” man-
ner. The latter are “consequently alterable.”112 He told his Provincial Council
in Pennsylvania, “If in the constitution . . . there be anie thing that jars, alter
itt.”113 If Bacon and Descartes liberated man from the superstitions of the
Church and began to formulate a doctrine of human progress based on rea-
son, Quakers, as they understood themselves, liberated man from his reason to
allow a doctrine of not just spiritual, but sociopolitical progress.114
The relationship between the people and the government was therefore not
the same kind of contract as envisioned by Locke and others. The people
consented to be governed and thereby entered a contract, but the contract
could never be broken. The contract was rather in a continual process of
negotiation.115 It is no surprise then that we ¬nd little language of covenant
in Quaker religious or political writings.116 There was a vaguely Hobbsian

110 Penn, First Frame, PWP, 2: 213.
111 Penington, Right, Safety and Liberty, 32.
112 Penn, England™s Present Interest Discovered, 6. Gordon S. Wood notes that Americans did
not see this distinction until they began writing their state and federal constitutions. See The
Creation of the American Republic, 261“65.
113 William Penn, “Speech to the Provincial Council,” April 1, 1700. PWP, 3: 591.
114 See J. B. Bury, The Idea of Progress: An Inquiry into Its Growth and Origin (New York: Dover
Publications, 1932).
115 See Zuckert: “[I]f political life is understood as derived from God or nature that suggests a
limit to what can be done with it” (Natural Rights, 10). See also John Dunn, The Political
Thought of John Locke, 68. For most Englishmen, the laws and government were sacred. The
argument here is that the meaning of “sacred” was different for non-Quakers and Quakers.
For non-Quakers, this meant unchangeable; for Quakers, it meant evolving.
116 This is not to say that they never used the language of covenant or the word contract in
their political treatises, merely that the meaning was different from the manner in which it
was used by their contemporaries. Andrew Murphy also notes the difference between Penn™s
90 Quaker Constitutionalism in Theory and Practice

quality to the absoluteness of the Quaker arrangement and therefore little need
to discuss an unbreakable bond.
In contrast to both the ancient and modern theories, then, Quakers related
all parts of a fundamental law, constitution, government, and its structures and
laws inextricably to one another; but they quali¬ed that relationship so that
there was a ¬‚exibility that the ancient constitution lacked and a permanence
that the “modern” constitution had not yet developed. There was a sort of
relativism in Quaker thought that held the fundamental law to be unalterable,
but interpretation of it may change depending on who discerned it, when, and
how. Evolution was therefore allowed “ encouraged, even “ and piecemeal
changes could be made as necessary but without the same risks. The people
would comply with the laws because they had created and approved them;
instability would be even less of a danger because change could still happen
cautiously, but through an established process, and it would be documented
for reference. Penn could therefore observe without trepidation: “I do not ¬nd
a Model in the World, that Time, Place and some singular emergency have not
necessarily altered.”117
Despite the fact that Quakers were intent on preserving the ancient consti-
tution, we should not make the mistake of thinking that they were champions
of the common law tradition. The common law was useful and important as
a tool, a well of information, but only God was absolute. The common law
was suspect whether it was based on reason, custom, or, insofar as they were
often considered essentially the same thing, a mixture of both. In their defense,
in court they quoted St. Germain™s Doctor and Student (c. 1531) to prove that
“According to the Law of God, Prescription, Statute, nor Custome, ought not
to have prevailed” in their trials.118 The trial of William Penn and William
Mead, known as Bushell™s Case, exempli¬es the Quaker position when Penn,
accused of disturbing the peace by public preaching, demanded of the court,
“unless you shew me, and the People, the Law you ground your Indictment
upon, I shall take it for granted that your proceedings are merely arbitrary . . . It
is too general and imperfect an Answer, to say it is the Common-Law, unless
we knew both where, and what is it; For where there is no Law, there is no
Transgression; and that Law, which is not in being, is so far from Common,
that it is no Law at all.”119 Custom was therefore not good enough evidence
of the constitutionality of a law.
Friends were unequivocal on the matter of the necessity of a legitimately
established written law and its accessibility to ordinary people.120 Laws that

contractarianism and Puritan covenant theology, although he ¬nds Penn to be functioning
only within a more typically English tradition than Puritans rather than anything speci¬cally
Quaker (Conscience and Community, 171“73).
117 Penn, First Frame, 213.
118 A Brief Relation of the Proceedings, &c., 31, in Quaker Tracts vol. 5 (London, 1662).
119 The Peoples Ancient and Just Liberties Asserted in the Tryal of William Penn, and William
Mead (London, 1670), 8“9.
120 Horle, Quakers and the English Legal System, 167.
Quaker Theory of a Civil Government 91

could not be easily traced both to their divine origins and their placement in
a written document were null and void. As Edward Byllynge wrote, “let the
Law be printed, that everyone may know that Law, which he is subject to, to
the intent that no man may be condemned by a Law which he neither knowes,
nor ever heard of, nor understands; neither indeed can he, when as it lyes the
brest other men.”121 A Quaker arrested for testifying against sin at a public fair
said impertinently to the magistrate, “Shew me what law I have broken . . . I
shall not believe thee now, except thou reade the Law to me.” He chastised the
judge, “[T]hou ought to have such things ready when men are brought before
thee.”122
Thus, by adhering to the Light instead of reason, secular history, or custom,
Quakers avoided two problems of the common law advocates “ misreading
the present laws into the past and the “idealization of custom.”123 The Quaker
theory of the permanent yet changeable constitution had the adaptability of
the common law tradition without the drawback of harmful “innovations”
becoming permanently institutionalized. The Quaker process of discernment
of a higher law along with other guides that were complementary but sub-
ordinate resolved the common law dilemma of whether to adhere to history
(custom) or reason as the basis for legal decisions. By contrast, Whigs were
uninterested in explaining how the laws had come into existence.124 Quakers
took a more critical view of history in that they could acknowledge the failure
of man™s reason and the subsequent development of corrupted custom. For
Quakers, the fundamental law was immutable, and the positive law was per-
fect until God gave them more clearness, which he inevitably would in his own
time. Knowledge of their own inevitable fallibility along with the possibility of
perfection let Quakers avoid the complacency, paradox, and hubris of the com-
mon lawyers who could, with con¬dence, believe not only that the common law
was in¬nitely changeable, adaptable, and perfect, while also remaining always
the same in its fundamentals, but also that they had discerned it correctly.
121 Edward Byllynge, A Mite of Affection (London, 1659), 3. See also A Brief Relation of the
Proceedings, &c., which says that “E. Burroughs spoke again to the Court and told them,
That this common Law (which they had said was not written) but lay in the Breasts of the
Judges (this was said both then and the Sessions before) he was not well knowing in, neither
the extent of it, nor the Penalties of it” (14). A discussion that highlights the importance of
process in Quaker law is in Bradley Chapin, “Written Rights: Puritan and Quaker Procedural
Guarantees,” PMHB vol. 114, no. 3 (1990), 323“48. See Bernard Bailyn, Ideological Origins
of the American Revolution (Cambridge, MA: Belknap Press, Harvard University, 1967), 189“
93. Bailyn explains that before the American constitutional period, no writers saw the need
for their fundamental laws and principles to be codi¬ed and actually objected to it. It was not
until the mid-1770s, he argues, that this idea became commonplace in American thinking.
122 Solomon Eccles, Signs are from the Lord to a People or Nation to forewarn them of some
eminent Judgment near at hand [1663] in Quaker Tracts vol. 6 (London, 1663“64). This item
is a foldout in the middle of the book with no page number.
123 Pocock, Ancient Constitution, 31, 34.
124 See Martyn P. Thompson, “A Note on ˜Reason™ and ˜History™ in Late Seventeenth Century
Political Thought,” Political Theory vol. 4, no. 4 (1976), 491“504. 499. Also see Behrens,
“The Whig Theory of the Constitution.”
92 Quaker Constitutionalism in Theory and Practice

The Quakers™ acceptance of change led them to view a return to ¬rst prin-
ciples as a salutary endeavor. It was man™s duty to create a constitution based
on ¬rst principles and then engage in a continual process of review to see that
the laws never strayed from them. If they did, there must be a return. This
marks another departure of Quaker thought from others of the day. Most
seventeenth-century theorists rejected with horror the idea of the sort of return
to ¬rst principles that Machiavelli advocated. It was, as far as they were con-
cerned, a necessarily violent and destructive endeavor that would return society
to the chaotic state of nature.125 Quakers, on the other hand, believed that a
return to ¬rst principles was not only necessary but desirable. Isaac Penington
argued that “[a]ll things by degrees gather corruption.”126 The people must

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