<< . .

. 12
( : 44)

. . >>

“search out and discover things from their ¬rst rise,” but which “from suc-
ceeding Principles or Practices . . . may easily decline awry and cover the true
knowledge and intent of things.”127 But the change could not come from the
top down. The “Superstructure” of government, Penn explained, the “visible
Authority,” cannot invalidate any of the fundamental laws without “a clear
overthrow of its own Constitution of Government, and so to reduce them to
their . . . ¬rst principles.”128 This was a clear distinction between the outward
power of the government from above against the power of the people collec-
tively as they derive it from God. Divine sovereignty by proxy established gov-
ernment, and the same force had the power to change it. “When [the people],”
said Penington, “¬nd [their government] either burdensome or inconvenient
they may lay it aside, and place what else they judg lighter, ¬tter or better in
the stead of it.”129 This was because, agreed Penn, “those things that are abro-
gable or abrogated in the great Charter, were never a Part of the Fundamentals,
but hedg™d in then for present Emergency or Conveniency.”130 Thus while a
return to ¬rst principles did destroy the corrupt aspects of the government,
the fundamental constitution of the people remained intact and the power to
reconstitute the government lay with them. It was this supposedly new principle
of “constituent sovereignty” that brought the U.S. Constitution into being.131

125 Republics Ancient and Modern, 2: 36, 195, 201, 248, 298“305. Also Samuel H. Beer, To Make
a Nation: The Rediscovery of American Federalism (Cambridge, MA: Belknap Press, Harvard
University, 1993), 204.
126 Penington, Right, Safety and Liberty, 7.
127 Ibid., 15.
128 Penn, Great Case, 30
129 Penington, Right, Safety and Liberty, 3.
130 Penn, England™s Present Interest Discovered, 29.
131 Beer explains the principle: “Given this concept of popular sovereignty, the Americans neces-
sarily conceived of two sorts of human law: on the one hand, a fundamental law made by the
sovereign people which authorized government and de¬ned individual rights and, on the other
hand, another sort of law made by bodies authorized by this fundamental law. Needless to
say, if the rules made by such inferior law-making bodies breached the fundamental law, these
rules were invalid not merely morally but legally, since the law giving these bodies authority at
the same time limited that authority. Above these inferior law-making bodies was a sovereign
Quaker Theory of a Civil Government 93

In 1728, however, in defense of the Pennsylvania constitution, Quaker speaker
of the Assembly David Lloyd wrote that legislative acts, “together with the
[constitution], must be binding upon the People and their Delegates, until they
are regularly altered or repealed, by and Authority, at least equal to that which
First enacted them.”132
Like Levellers who decried the “Norman Yoke,” Penn differentiated between
the “Lawful” and the “Unlawful” civil laws in arguing that not all laws enacted,
though legal, are constitutional “ that one is mistaken to think that “the enact-
ing of any-thing can make it lawful.”133 But Penn did not reject the common
law in its entirety or the ancient constitution. So how, then, should constitu-
tional change take place practically? There were two ways, both of which were
in keeping with divine law. One used the existing governmental structures;
the other employed extra-legal means. The ¬rst way, which was preferable,
but also only theoretical in Britain, was to build a process for change into the
constitution. In a momentous occasion in constitutional history, Penn wrote
the ¬rst amendment clause into his First Frame of Government for Pennsylva-
nia.134 Article XXIII begins in the negative with “No Act, Law or Ordinance
whatsoever, shall at any time hereafter be made or done by the Governour, or
by the Free-men in the Provincial Council, or the General Assembly, to Alter,
Change or Diminish the Form or Effect of this Charter, or any Part or Clause
thereof, or contrary to the true Intent and Meaning thereof.” This restriction
is, no doubt, Penn™s answer to the problematic history of the common law tra-
dition when unwritten laws accrued over time and were not traceable to ¬rst
principles. But the clause continues, specifying that changes could be made with
“the Consent of the Governour, his Heirs or Assigns, and Six Parts of Seven
of the said Free-men in Provincial Council and General Assembly.” As novel
as this provision was, another leading Quaker, Benjamin Furly criticized the

power which had authorized them and which watched over them and could intervene to cor-
rect them. To appeal to this superior authority against transgressions of the fundamental law
did not disrupt the social order or send society back into the state of nature but rather called
into action the sovereign law-making power, the people” (To Make a Nation, 152). Although
God has been excised from this process, it is clear where the divinity would be in the Quaker
model. It would be in the people.
132 David Lloyd, A Defence of the Legislative Constitution of the Province of Pennsylvania as it
now stands Con¬rmed and Established, by Law and Charter, (Philadelphia, 1728), 4.
133 Penn, Great Case, 35. Wood ¬nds this distinction ¬rst at the American Revolution: “[I]t was
precisely this distinction between ˜legal™ and ˜unconstitutional™ that the Americans and British
constitutional traditions most obviously diverged” (“State Constitution-Making,” 920). Most
religious groups made distinctions between what was lawful and unlawful, where man™s law
did not correspond with God™s. But because Quakers believed God™s law was embodied in the
civil constitution, thus con¬‚ating civil law and divine law, “unlawful” and “unconstitutional”
were the same things.
134 Benjamin F. Wright, Jr., “The Early History of Written Constitutions in America,” in Essays
in History and Political Theory in Honor of Charles Howard McIlwain (New York: Russell &
Russell, 1964), 344“71, 357. Here Wright also ¬nds that this Frame “re¬‚ects a more mature
conception of fundamental law than any other of the seventeenth century.”
94 Quaker Constitutionalism in Theory and Practice

clause for being too restrictive in favor of the governor and not open enough
to a popular process.135
Beyond this, however, there was no formal process for constitutional
change “ no such thing as judicial review was built into the Pennsylvania
government. But Quakers already had a process for legal review and peaceful
change that made use of the existing system “ nonviolent protest of various
sorts, including civil disobedience, and then legal reform. If a law was found to
be unconstitutional, Penn said, it might be necessary “that the Law should be
broke.”136 As Quakers demonstrated in England and the American colonies,
“If the enacting of any-thing can make it lawful, then we [have disobeyed the
law].” They must do so because they are “commanded by God.”137 And Pen-
ington af¬rmed, “Now that which is of God cannot bow to any thing which
is corrupt in man: it can lye down and suffer . . . but it cannot act that which
is against its life.”138 But the uniqueness in Quaker practice was more than
simply that they should disobey, but also how.
They followed the process that we have seen in their ecclesiastical polity.
According to their peace testimony, they were commanded by God not to
destroy his creations, including the constitution.139 From the beginnings of
their Society, Quakers had been taking their religious commission to testify
for God™s law into civil society to secure liberty of conscience. They were
the only radicals to survive the Interregnum and continue to “publish” their
understanding of God™s law. They did this by developing a systematic pro-
cess of civil disobedience, the ¬rst in Anglo-American history. “We do own
and acknowledge Magistracy to be an Ordinance of God, instituted of him,”

135 PWP, 2: 227.
136 Penn, Great Case, 25. Almost thirty years after Quakers began practicing civil disobedience,
Locke came to agree with the appropriateness of their actions to gain toleration, writing in
his Letter concerning Toleration (1689) that if a magistrate enacts anything that goes against
the conscience of the individual, “such a private Person is to abstain from the Action which
he judges unlawful, and he is to undergo the Punishment which it is not unlawful for him to
bear” (57). This is, of course, in marked change from his earlier position against toleration as
expressed in the Two Tracts of Government (1660“c.1662). Given that the Quakers were the
only remaining radical sect engaging in the public sphere during the Restoration and practicing
this form of dissent, they must have been a factor in Locke™s changed thinking.
137 Ibid., 35.
138 Penington, Consideration of a Position, 29.
139 This is a vast simpli¬cation of this very complex theological doctrine. The peace testimony
was neither uniform nor codi¬ed in the Discipline until decades after the seventeenth century.
As Meredith Baldwin Weddle points out in Walking in the Way of Peace, individual Quakers
interpreted the testimony differently at this point, and for some, violence or killing under
certain circumstances was acceptable. And as for the duties of the government in this regard,
Quakers generally distinguished between the civil and temporal realms and agreed that the
government had a right to impose capital punishment for crimes such as treason. But another
point of agreement was on the sanctity of the government, for which, of course, executions
for treason were necessary. Contrary to Weddle™s claim that there was no consensus on how
to apply the testimony, all evidence in Quaker political philosophy and most practice points
to the fact that they believed the constitution to be inviolable by man.
Quaker Theory of a Civil Government 95

explained Edward Burrough, and “that we are subject by doing or suffering,
to whatsoever Authority the Lord is pleased to set over us, without Rebellion,
Sedition, Plotting, or making War against any Government or Governors.”
In a rightly constituted government, he continued, “We are, and do engage
to be subject thereunto all the Commands and Injunctions of such Authority
and Government whose Laws, Ordinances, and Commandments are grounded
upon right Reason, Equity, which leadeth to do unto all men as we would be
done unto.” And their duty was likewise “patient suffering under all Penalties
in¬‚icted for disobedience to the Commands which we cannot perform by Obe-
dience for Conscience sake.”140 They broke laws that restricted their religious
practice peacefully, openly, and submitted to the resulting brutal punishments
to bring attention to the injustice and effect reform in the system. But more
than that, as discussed in Chapter 1, they organized themselves to confront the
government from within. They established the ¬rst lobbying group in England
and mastered the law to the extent that they baf¬‚ed the very system that was
oppressing them.141
Unlike resistance theory from Duplessis-Mornay™s in Vindic¦ Contra Tyran-
nos (1579) to the practice of American mobs before the Revolution, Quakers
advocated resistance by individuals. As far as resistance to government was
allowed by thinkers such as Sidney, Locke, and Hoadly, they agreed that it
must be undertaken by the “whole people who are the Publick” or their rep-
resentatives, not private individuals.142 Quakers, on the other hand, not only
encouraged individuals to follow their inner “leadings” against the govern-
ment but often preferred this mode instead of protesting en masse, which they
believed could be too disruptive.
Quaker thought and practice was an apparent contradiction for their con-
temporaries. Friends™ actions caused most to believe that “the Quakers deny
Magistracy and Government as such.”143 Without precedent, Quakers were
uncategorizable. Non-Quakers did not understand the meaning of a people
who could in the same breath proclaim loyalty to the king while breaking
the laws he passed. This was a new understanding of government and civic
engagement. And it was premised on a comparatively modern understanding of

140 Edward Burrough, A Vindication of the People Called Quakers (n.d.), 22“23, in Quaker
Tracts, vol. 4 (London, 1661), 466“88.
141 On Quaker interactions with the government, see Horle, Quakers and the English Legal Sys-
tem. Their establishment of an organization that would approach the government on behalf
of Friends was likely an inheritance from their Puritan predecessors, who “explored the tech-
niques of lobbying” less formally (Walzer, Revolution of the Saints, 129).
142 Pauline Maier, From Resistance to Revolution: Colonial Radicals and the Development of
American Opposition to Britain, 1765“1776 (New York: W. W. Norton & Co., 1972, 1991),
33“36. As indicated in fn. 136 in this chapter, however, Locke seemed to come around to
accepting the propriety of individual resistance, at least where religion was concerned.
143 Francis Bugg, Hidden Things brought to Light. Whereby The Fox is Unkennel™d: And the
Bowells of Quakerism Ript up, laid open, and expos™d to Publick View; by a Dialogue Tri-
partite. Whereby the Quakers Inside (to speak Figuratively) is turn™d Outward; and the Great
Mystery of the Little Whore Farther Unfolded (London, 1707), 162.
96 Quaker Constitutionalism in Theory and Practice

political arrangements. Quakers needed to have a tremendous amount of faith
in the English constitution and its prescribed legal system to have embraced
it so. They knew that the remedy for the ills came from the same source as
the cause; the constitution merely needed reform. Their detractors did not yet
understand that civil disobedience, as disruptive as it could be, is based on a
strong sense of political obligation and a deep respect for the constitution of
the state. They were right, however, when they wrote that Quakers “Repeal,
not verbally, yet virtually, so far as their Power reaches, all Acts of Parliament
which suit not their Light Within.”144 Moreover, Quakerism necessitated a
greater degree of popular power than existed in any established group for the
legal discernment and action to grow organically.
When they wrote their political treatises, they made peaceful reform a fun-
damental principle of their political theory not just for the sake of liberty of
conscience, but for civil liberty and limitation of the government in general.
Penington wrote, emphasizing their process, that “the right Constitution and
orderly motion of them is of the greatest consequence that can be, there being
so much embarqued in this Vessel.”145 Likewise, in a treatise considered by
some historians to be one of the earliest de¬nitive statements of Whig political
philosophy, Penn expressed a belief atypical of subsequent Whig tracts: “The
Weapons of [Christ™s] warfare were not Carnal, but Spiritual.”146 He also
expanded their action beyond liberty of conscience: “Nor is there any Interest
so inconsistent with Peace and Unity, as that which dare not rely upon the
Power of Persuasion.”147 Thus Quakers could in good conscience advocate a
return to ¬rst principles because they had a process by which it could be done
peacefully, constitutionally, without overthrow of the government. This was
how, as Penington hinted, God would work through the people to alleviate
their oppression. In Quaker theologico-politics, no theory of revolution was
ever legitimate. So important was this right of civil disobedience that it was
codi¬ed in the “Fundamentall Constitutions” of Pennsylvania. Penn wrote that
if a governor or his deputy “by the evill insinuations and pernicious Councells
of some in powr or esteem, with him of or from his mistakeing the true extent
of his Authority . . . command or require the of¬[c]ers or Magistrates in this
Province . . . to do a thing that is Contrary to thes Fundamentalls . . . every such
of¬cer or Magistrate, shall be surely oblieged to reject the same & follow the
tenure of thes Fundamentalls.”148 Thus the laws were subject to interpretation

144 Francis Bugg, Pilgrim™s Progress, 38.
145 Penington, Right, Safety and Liberty, 7.
146 William Penn, England™s Great Interest in the Choice of this New Parliament (London,
1678/79), 4. David Ogg in England in the Reign of Charles II (Oxford: Oxford Univer-
sity Press, 1955) and Mary Maples Dunn in Politics and Conscience have identi¬ed this tract
as such. For another reference to “spiritual weapons,” see also Penn™s “Fundamentall Con-
stitutions,” PWP, 2: 143. For the earliest and most thorough analysis to date of the role of
paci¬sm in Quaker political thought, see Wellenreuther, Glaube und Politik.
147 Penn, England™s Present Interest Discovered, 32.
148 Penn, “Fundamentall Constitutions,” PWP, 2: 152.
Quaker Theory of a Civil Government 97

by the people and civil disobedience was identi¬ed as a fundamental right.149
This demand by Quakers to determine collectively the validity of the law shat-
tered the traditional hierarchy and undermined both divine right of kings and
the forthcoming theory of parliamentary sovereignty.
It was this paci¬sm and desire for genuine and substantial reform, not rev-
olution, that was at the core of Quaker political thought; and this is what
makes their theory unique in the seventeenth and eighteenth centuries. They
were radicals, but not revolutionaries.150 Certainly Whig political thought had
a signi¬cant element of moderation. The Whiggism of the American Revolu-
tionaries, drawn from the likes of Sidney, Locke, Hutcheson, and Cato, was
concerned at least as much with preserving laws, government, and peace as it
was with resisting oppression through revolution. There was a strong propen-
sity for ¬rst attempting peaceful means through resistance of speci¬c unjust
laws before resorting to revolution. But in spite of the pronounced Whig con-
servatism during the Restoration and the continued preference for peace in the
eighteenth century, Whigs were ultimately willing to resort to violence. At bot-
tom, they could and did justify revolution, but Quakers could not. Whiggism
was an “oppositional” ideology; Quakerism was conciliatory. Furthermore,
while it is clear that there was a whiggish theory of peaceful resistance, it is
not clear that it developed independently of the Quaker theories on govern-
ment and their methods of resistance that were being articulated and practiced
at the same time. Penn moved in the same circles and exchanged ideas with
the most prominent Whig thinkers, including Locke. Moreover, in England
and America, the Quakers were practicing peaceful resistance more staunchly
and more visibly than any other group. Other Englishmen certainly looked to
constitutions, bills, and petitions as guarantors of their rights, they appealed
to fundamental principles, and they tried to reform with moderation; but in
their impatience, they knew no way to effect major reform without destroy-
ing the constitution through revolution.151 As Thomas Paine explained in his
appendix to Common Sense (1776), “having no defense for ourselves in the
civil law; [we] are obliged to punish [the British] by the military one and apply
the sword.”152
In some ways, we can understand civil disobedience as the primitive pre-
cursor of judicial review.153 It is a way to check the power of the government

149 To be sure, the idea of disobedience was current in many forms of religious thought, both
Catholic and Protestant. But in this context, with Quakers™ theological imperative to publish
the truth through civil disobedience if necessary, we can assume that this clause would have
been understood as giving of¬cial sanction of this practice.
150 Hill hints at this when he writes that “In the last resort, perhaps, Quakers did not want to
overturn the world” (The World Turned Upside Down, 374).
151 On Whig resistance in general, as well as their inclinations for peace, see Maier, From Resistance
to Revolution, esp. 28 and 42.
152 Thomas Paine, Common Sense (1776), 92.
153 It is not altogether certain that Quakers would have approved of judicial review had the idea
been in circulation, and likely for the same reasons that the thinkers at the American Founding
98 Quaker Constitutionalism in Theory and Practice

and change the laws without violence. In judicial review, guardians of the con-
stitution on behalf of the people test the positive law against the fundamental
principles of the constitution and then, if necessary, repeal the ones that are
unconstitutional.154 Civil disobedience is a process of judicial review in which
the people themselves are the judges.155 They repeal laws virtually before they
are formally abrogated. A point to remember is that, for Quakers, the process
was as important as the result. The means were not just tools, they were an
integral part of Truth-seeking, and adhering to them correctly was an end in
itself. Thus what historians have found to be an innovation of the American
Founding “ the idea and creation of a sacred and perpetual yet amendable
constitution that is formed through a sort of democratic process156 “ was envi-
sioned and enacted by Quakers one hundred years earlier.

In a sense, Quakers were a sort of “trimmer.” Describing the character of a
Trimmer, a faction of moderates during the Glorious Revolution, George Savile
wrote that “This innocent word Trimmer signi¬es no more than this, That if
Men are together in a Boat, and one part of the Company would weigh it
down on one side, another would make it lean as much to the contrary,
it happens there is a third Opinion of those who conceive it would do as
well, if the Boat went even, without endangering the Passengers.”157 Quakers,
like Savile™s Trimmers, returned repeatedly to the theme of a balanced ves-
sel. Penington wrote in 1651 that “it becometh everyone (both in reference
to himself and the whole) to contribute his utmost towards the right steering
of this Vessel, towards the preserving of it both in its state and motions.”158

expressed. See Kramer, The People Themselves; Tom Paine and Robin West, “Tom Paine™s
Constitutionalism,” Virginia Law Review vol. 89, no. 6, Marbury v. Madison: A Bicentennial
Symposium (2003), 1413“61. And note as well that Paine was raised a Quaker. See Eric Foner,
Tom Paine and Revolutionary America (New York: Oxford University Press, 1976), 3.
154 Wood calls them “agents of the people” in “State Constitution-Making,” 925.
155 See also Kramer, The People Themselves.
156 Ibid., 917. It was the framers, says Wood, who “showed the world how written constitu-
tions could be made truly fundamental and distinguishable from ordinary legislation, and
how such constitutions could be interpreted on a regular basis and altered when necessary.”
Likewise, Willi Paul Adams writes that “[t]he Americans went beyond Locke and Blackstone
in 1776 . . . by institutionalizing peaceful means of making and amending constitutions” (The
First American Constitutions: Republican Ideology and the Making of State Constitutions in
Revolutionary America [Chapel Hill: University of North Carolina Press, 1979], 139). Jack
Rakove ¬nds that “the resort to popular sovereignty in 1778“88 marked the point where
the distinction between a constitution and ordinary law became the fundamental doctrine
of American political thinking” (Original Meanings: Politics and Ideas in the Making of the
Constitution [New York: Vintage Books, 1997], 130). Beer and Zuckert also follow this inter-
pretation. Kramer, it seems, would date this development latter, in the 1820s and 1930s with
the establishment of judicial review.
157 Savile, The Character of a Trimmer, preface.
158 Penington, Right, Safety and Liberty, 7.
Quaker Theory of a Civil Government 99

Similarly, in justifying the establishment of the Quaker ecclesiastical polity,
Barclay explained in Anarchy of the Ranters that the problem of establishing
a church government was that man is “inclinable to lean either to the right
Hand or to the left.” The goal, of course, is to keep it somewhere in the mid-
dle. In their politics, therefore, Quakers resisted party af¬liations in favor in
maintaining their agenda of moderation to preserve the constitution and gain
or retain rightful liberties. This is not to say they did not make temporary
alliances on one side or the other to achieve these ends “ they were as ecu-
menical in their politics as they were in their religion. It was not the name that
mattered but the principles, which caused Friends to choose seemingly strange
traveling companions, such as James II. But those who espoused moderation,
especially when they were perceived as radicals, were attacked from all sides.
“[I]t so happens,” explains Savile, “that the poor Trimmer hath all the Pow-
der spent on him alone . . . there is no danger now to the state . . . but from the
Beast called a Trimmer.”159 Barclay found the same problem for those who
sought to establish church government: “If through the power of God they be
kept faithful and stable, then they are calumniated on both Sides; each likening
or comparing them to the worst of their Enemies.”160 But although Savile™s
Trimmers preferred balance, when revolution took place, they were content to
stand aside and let it run its course.161 The struggle for a balanced and last-
ing constitution recurred in all the Quakers™ relationships with government,
regardless of whether they played the role of dissenter or politician. And unlike
Trimmers, Whigs, or Tories, traditional Quakers held steadfast to their convic-
tions about peaceful dissent, unity, and rights even in the worst storm. Their
practical politics in Pennsylvania show us their political philosophy in action.

159 Savile, The Character of a Trimmer, preface.
160 Barclay, Anarchy, iii.
161 Robbins, The Eighteenth-Century Commonwealthman, 57. On the Trimmer position see also
Behrens, “The Whig Theory of the Constitution,” 70“71, and Conniff, “The Politics of Trim-
ming,” who would add that Trimmers had a darker view of the nature of man that made his
dissent aggressively competitive rather than cooperative.

“Dissenters in Our Own Country”
Constituting a Quaker Government in Pennsylvania

The transition from political theory to practice in the Quaker colonies was a
dif¬cult one. The same problems plagued them in their early years as troubled
the Quaker ecclesiastical polity at its founding. How would a people whose
theologico-political thought was based on apparently irreconcilable tenets of
unity and dissent, of bureaucracy and liberty, settle the question of authority
amongst themselves? In the church, they had decided the issue in favor of a
representative spiritual democracy with elders and ministers bearing most of
the weight of legal discernment and governance. The balance in a civil polity,
however, was not so easily achieved. The Quaker theory of a civil government,
like their theology, suggested a strong popular element. But leading Friends
were all too aware that the libertinism that necessitated a powerful central
government in their church could surface in their new civil polities, West Jersey
and Pennsylvania. Although Quakers could not agree at ¬rst on what balance
should look like in these polities, they concurred on their other basic principles “
that the polity was sacred and perpetual, and that change must be made within
the existing framework and without violence. Unlike the church government,
in the early years of these civil experiments, we see the balance of power shift
from the elite few to the popular majority. The following discussion concerns
the internal struggles of the Quaker government in Pennsylvania during the ¬rst
twenty years,1 from 1681 to 1701, and how these struggles followed a similar
pattern and exempli¬ed similar dif¬culties as in the ecclesiastical polity.2

1 Therefore, when I use the term popular or elite, I am speaking about factions within the General
Assembly and not the entire population.
2 The standard work on this period is Gary B. Nash, Quakers and Politics. The dif¬culty with
this otherwise important work is that, while Nash acknowledges the importance of theology as
a foundation for Friends™ politics (338“39), he ¬nds that self-interested ¬nancial gain is their
primary motivator (79). See also Edwin B. Bronner, William Penn™s Holy Experiment: The
Founding of Pennsylvania, 1681“1701 (New York: Temple University Publications; distributed
by Columbia University Press, 1962).

Constituting a Quaker Government in Pennsylvania 101

In particular, this chapter explores the process of constitutional reform at the
highest level of the polity, with the polity being understood by Quakers as the
meeting writ large. What we ¬nd here is an internal dissent and reform process
that reveals how Quakers imagined their civil constitution (meaning primarily

<< . .

. 12
( : 44)

. . >>