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58 Quaker Constitutionalism in Theory and Practice

Apology, Barclay reminded Charles II of the Quakers™ openness in their civil

In the hottest times of persecution and the most violent persecution of those laws made
against meetings, being clothed with innocency, [Friends] have boldly stood to their
testimony for God, without creeping into holes or corners, or once hiding themselves,
as all other Dissenters have done; but daily met, according to their custom, in the public
places appointed for that end; so that none of thy of¬cers can say of them that they
have surprised them in a corner, or overtaken them in a private conventicle, or catched
them lurking in their secret chambers; nor needed they to send out spies to get them,
whom they were surely daily to ¬nd in their open assemblies, testifying for God and his

This kind of openness was in keeping with other Quaker testimonies of plain-
ness, such as those of deportment or speech.
Quakers then disobeyed a range of laws that were passed against religious
dissenters in general, and them in particular. In both England and America,
for example, they broke laws that required attendance at the state-established
church or prohibited dissenters from holding their own public meetings, which
were seen as conspiratorial against the state and encouraging of religious schism
in the Church of England.135 The First and Second Conventicle Acts of 1664
and 1670 made attendance at any other religious meeting outside the Church
of England punishable by imprisonment, stiff ¬nes, or banishment.136 Friends
met anyway. Also, despite the fact that Quakers often met in complete silence
and bodily stillness, they were harassed by of¬cials for rioting. They contin-
ued, however, to meet openly in spite of being ¬ned, imprisoned, beaten, and
physically expelled from their meetinghouses.137 In 1665 Parliament passed the
Five Mile Act, in part to curb Quaker public preaching. This law prohibited
individuals who had been convicted of preaching in the past, and who refused
to swear oaths of loyalty to the government, from coming within ¬ve miles of
any borough sending burgesses to Parliament. Infractions against the act could
earn an offender a ¬ne and six months in prison without a trial.138 Quakers,
of course, still preached.
The next step in their civil disobedience was to accept the inevitable pun-
ishments willingly and with love. As suggested previously, not only were early
Friends willing to accept their penalties, they were eager. “And if by [testifying
against unjust laws] our sufferings be continued,” explained Robert Smith, “we
shall not rise up with carnal Weapons to work out our own deliverance, but

134 Barclay, Apology, iv.
135 Horle, 46.
136 Hugh Barbour and J. William Frost, The Quakers (New York: Greenwood Press, 1988), 66.
137 Thomas Ellwood, A discourse concerning riots: occasioned by some of the people called
Quakers, being imprisoned and indicted for a riot, for only being at a peaceable meeting to
worship God (London, 1683), passim.
138 Horle, Quakers and the English Legal System, 51.
Origins of Quaker Constitutionalism and Civil Dissent 59

patiently endure what may be further laid upon us for the Truth™s sake.”139
Martyrdom was an extremely important component of Quaker dissent. What
distinguished early Quakers from other dissenters in the eyes of their contem-
poraries was their zeal in seeking out con¬‚ict with authorities. Moreover, they
reveled in their punishments, embracing their martyrdom as a sign of their righ-
teousness and salvation and earning converts in the process. The more extreme
the punishment, the more certainty of righteousness and the great possibility
of a convincement
But ideally, of course, Friends were not seeking persecution but reform and
liberty. Thus their process continued. The next step was not to retreat, but
to engage more intimately with their persecutors. They did this by organizing
themselves and going to law. Early Friends had a justi¬able distrust of the law
and lawyers. It was, after all, English law that gave their oppressors license to
abuse them; and it was the lawyers who exploited their need for assistance,
charging exorbitant fees for often-ineffectual counsel. Despite the fact that
many Quakers would later become great lawyers themselves, the sentiment
among Friends that lawyers were “terrible and lawless” persisted into the
nineteenth century.140 Although Fox had been making regular appeals for
justice to the government since the 1650s, by the 1670s, Friends were beginning
to establish a system of their own for achieving liberty of conscience. They
evolved from a people who seemed to reject the laws of the polity completely
to one that de¬ned itself based on a similar kind of legal structure and process
and employed this process to strike at their oppressors.141 When faced with
oppression, then, Friends™ alternative to violent resistance was exploitation of
the existing legal system.
Friends seemed to know instinctively that, for direct action against the gov-
ernment to be effective, they must organize. At the same time they were found-
ing the church government, they were also forming committees and meetings to
deal with civil matters through their process. One of the earliest and broadest
groups organized by early Friends was called the Meeting for Sufferings. Estab-
lished in 1676 this meeting was convened in order to document the religious
persecutions in¬‚icted on Friends. The institution of this meeting was crucial to
Friends as a legal weapon against the English government.142 Under the aus-
pices of the Meeting for Sufferings, Friends collected, recorded, and published
their persecution. It became the ¬rst-ever lobbying group in England as mem-
bers took the recorded sufferings and presented them to justices and members
of Parliament.143 It acted also as a legal advocacy group for individual Friends.

139 Robert Smith, A Cry against Oppression and Cruelty [1663], 3, in Quaker Tracts, vol. 6
(London, 1663“64).
140 Edward Byllynge, A Word of Reproof, and Advice (London, 1659), 20. See also Journal of
George Churchman, esp. 1794, 3rd mo., 7: 11, HQC.
141 Horle, Quakers and the English Legal System, 162.
142 Ibid.
143 Frederick Tolles, Quakers and the Atlantic Culture (New York: Macmillan, 1960), 44. Also,
Mary Maples Dunn, Politics and Conscience, 23; and Kirby, “Quakers™ Efforts.”
60 Quaker Constitutionalism in Theory and Practice

Members of the meeting traveled around the English countryside, informing
Friends in remote locations of their legal rights, should unscrupulous of¬cials
attempt to con¬scate their goods or ¬ne them.
The purpose of collecting facts at this point was to determine whether or not
injustice existed. But it was also to assemble the evidence, mobilize the efforts,
and prepare for the next phase of the nonviolent campaign: engagement with
the system. From the 1670s on, Friends devoted themselves to peaceful reform,
using every legal strategy available to them, as well as creating new ones and
recreating old ones. “[N]o people upon the Earth,” complained Francis Bugg,
“seek more to the Higher Powers [the civil government], than they do; it would
be too tedious to recite the many Petitions, and Addresses to the Parliament,
from the beginning for This, That, and the Other Favour, to settle and estab-
lish them.”144 Their tactics ranged from the straightforward, such as engaging
legal counsel, keeping detailed records of all proceedings against them, and
gathering and presenting evidence, to more complex maneuvers such as exten-
sive appealing and of¬cially discrediting informants. Some of their activities
also helped reform unfair or corrupt judicial and law enforcement systems.145
They insisted, for example, that in order for each person to understand and
address the judicial system, all laws and customs should be printed and they
also should be “pleaded, showed, and defended, answered, debated, and judged
in the English tongue in all courts.”146 They also argued in favor of expanding
the role of juries and not allowing anyone to be tried except by a jury of his or
her peers.147
Friends also engaged in some tactics that cannot be classi¬ed as civil dis-
obedience, but they were nonetheless forms of nonviolent resistance. With
remarkable dexterity, they manipulated the bureaucracy of the English legal
system. They found ways to circumvent unfair laws through legal loopholes.
One example of this was placing a poor Friend in a meetinghouse as a tenant,

144 Francis Bugg, A Retrospective-Glass for the Quakers (1710) republished in A Finishing Stroke:
Or, Some Gleanings, Collected out of the Quakers Books . . . Whereby The Great Mystery of
the Little Whore is farther Unfolded (London, 1712), 490.
145 See Horle, Quakers and the English Legal System, speci¬cally the chapters “The Lamb™s War,”
161“86, and “Quaker Legal Defense,” 187“253.
146 Richard Farnworth, The Liberty of the Subject by Magna Carta (1664), 12, quoted in Horle,
Quakers and the English Legal System, 167. Horle notes that the complaint of court cases
being conducted in Latin was a common one during this period, but we should remember
that plainness of communication and speaking directly at all times was a particular concern of
Quakers (183).
147 Ibid., 169. For commentary on Bushell™s Case, usually cited for its importance for trial by jury,
see Simon Stern, “Between Local Knowledge and National Politics: Debating Rationales for
Jury Nulli¬cation after Bushell™s Case,” Yale Law Journal vol. 111, no. 7 (May 2002), 1815“
59; Thomas A. Green, Verdict according to Conscience: Perspectives on the English Criminal
Jury Trial, 1200“1800 (Chicago: University of Chicago, 1985). Green™s work demonstrates
that “at the hands of the Quakers” the practice of legal review by juries based on freedom of
conscience became “a staple of post-Restoration pro-jury argument” (160; see esp. Chapter 6,
“The Principle of Non-Coercion: The Contest over the Role of the Jury in the Restoration,”
Origins of Quaker Constitutionalism and Civil Dissent 61

thereby avoiding high ¬nes that would otherwise have been imposed on the
owner of the house.148 They also used noncooperation and obstructionism to
frustrate legal procedure that they could not control to their advantage. They
refused to recognize laws passed against them without necessarily challenging
them publicly. They delayed legal proceedings by traversing indictments and
demanding changes of venue, and generally harrying their would-be prosecu-
tors with their meticulous attention to legal minutia and technical error.149
At the outset of a trial, Quakers would always plead “not Guilty” before the
court. Their plea was based not on man™s law but God™s. They would admit
to breaking “unfounded Law”150 but would claim that they “had transgressed
no just Law.”151 Thenceforth, they did not, as one might assume, simply claim
knowledge of the divine and let that stand as their defense. The approach
of Quakers™ legal argumentation was rather to appeal to reason as a tool to
articulate the teachings of the Light. Although Quakers based their defense in
court on God™s law known through the Light within, their argumentation was
nothing if not meticulously logical. They challenged the judges, magistrates,
and the very law itself on their own terms, using the very reason these men
held in esteem to dispute the charges against them. Robert Smith frustrated
a judge over the matter of wearing his hat in court. In this exchange, Smith
mixed religious and civil issues:

Judge. What is the reason you appear thus contemptuously before the Court with your
Hat on?
R.S. My Hat is my own, and I came truly by him, and it is not in contempt I wear him.
Judge. By it you contemn the Authority and Laws of this Kingdom.
R.S. Where is that Law that forbiddeth a man to wear his own Hat? Instance it.
Judge. It is a custom in England to shew their subjection to Authority by putting off
their Hats.
R.S. It is a custom in England for men to wear, or to come before Courts with Coats
or Cloaks, and I am here without either; and is not the one as much a contempt as the
Judge. Fine him ¬ve pounds, and record it, and now take off his Hat. Which the Gaoler
did accordingly.152

Smith continued in the same vein concerning oaths and whether the Doctrine
of Christ contradicted the Doctrine of the Law, with similar responses from the
judge. Here he accomplished two things. First, his primary goal was to testify
on the issue of spiritual equality by leaving his hat on. And second, he denied

148 Ibid., 188.
149 Ibid., 208, 215.
150 Smith, A Cry against Oppression and Cruelty, 7.
151 W. S. A True, Short, Impartial Relation Containing the Substance of the Proceedings at the
Assize held the 12th and 13th day of the Moneth called August, 1664, 1, in Quaker Tracts,
vol. 6 (London, 1663“64).
152 Smith, A Cry against Oppression and Cruelty, 4.
62 Quaker Constitutionalism in Theory and Practice

the legitimacy of customary law in two ways by arguing ¬rst that it is unwritten
and second that it is inconsistent and unreasonable. Smith™s civil disobedience
thus arose from the Light and was defended by reason.153
Quakers could and did use arguments based on reason and natural law to
appeal to the conscience “ proceedings as those just discussed were deemed by
them to be “contrary to all equity and reason” “ but if that failed or when it
suited their cause better, they could argue that God™s law seemed unreasonable
because it was not what people expected. When men would not “hear Reason,”
the defendant should rather “remain Silent” and leave the decision to the “Jury-
mens Consciences.”154
Their efforts eventually bore fruit. The Quakers, wrote Francis Bugg con-
temptuously, “[r]epeal, not verbally, yet virtually, so far as their Power reaches,
all Acts of Parliament which suit not their Light Within.”155 But Bugg did
not take his criticisms far enough. Over many decades, Quakers did, in fact,
succeed in actually repealing many of the laws that did not agree with their
Inward Light.156 And when they were not immediately successful in England,
they applied their skills to colonial American governments, where they eventu-
ally, one way or another, usually achieved their goals. This peaceful outlet for
frustrations with government, exploiting the existing machinery, would be the
Quakers™ most signi¬cant contribution to the American dissenting tradition.
Out of their process would grow new forms of constitutionalism and civic
Quaker thought and practice was an apparent contradiction for their con-
temporaries. They simply could not categorize Friends because they had never
seen anything like them before. They did not understand the meaning of a peo-
ple who in the same stroke of the pen could write to the king that “[Quakers]
never sought to detract from thee, or to render thee and thy Government odious
to the people” and yet that “it is not lawful for any whatsoever, by virtue of any
authority or principality they bear in the government of this world, to force the
consciences of others.”157 This was a new understanding of government and
civic engagement, and it was premised on a comparatively modern understand-
ing of political arrangements.158 In the traditional legal understandings, peace

153 A much more extensive example of Quakers™ legal reasoning against their judges can be found
in W. S., A True, Short, Impartial Relation, 1; and A Second Relation from Hertford [1664],
Quaker Tracts, vol. 6 (London, 1663“64). In the ¬rst tract the author describes in detail the
trial of some Friends for unlawful assembly, using extensive notes to refute each illogical turn
in the proceedings. The second is a transcription of the trial in which the Quakers harried the
court with their arguments. Numerous other tracts of the same sort are extant.
154 A Brief Relation of the Proceedings, &c., 19. in Quaker Tracts, vol. 5 (London, 1662).
155 Francis Bugg, The Pilgrim™s Progress from Quakerism to Christianity (London, 1698), 38.
156 Isaac Sharpless, Political Leaders of Provincial Pennsylvania (New York: Macmillan, 1919),
157 Barclay, Apology, xxii. See also William Penn, England™s Present Interest Discovered (London,
1675), 35.
158 By “arrangements,” I mean the structures and processes only, which can be secularized, not
the motivation behind them, which was religious.
Origins of Quaker Constitutionalism and Civil Dissent 63

had no ¬rm place. Quakers continually pointed out that that they broke the law
in peace. According to English law, however, to break the law at all was always
to do so “by force of arms.” “Force of arms” was a “form of law,” as a judge
explained. If several men should break the law by meeting together, “although
they have no visible weapons with them, yet their so meeting together is by
force of Arms, because it is contrary to the Laws; and if they do but disturb the
peace, it is by force of arms, expressed in all indictments.”159 Hence, despite
the fact they sat in silence and refused to bear arms, Quaker religious meetings
were considered “Riotous,” “Tumultuous,” and a “terrour of the People, and
to the evil example of all others.”160

Quakers needed to have a tremendous amount of faith in the English constitu-
tion and its prescribed legal system for them to have embraced it so. Indeed, they
believed that the Magna Carta was rightly constructed and was a resource to
be drawn upon for the defense of their liberties.161 They somehow knew that
the remedy of the ills came from the same source as the cause. The constitu-
tion merely needed reform. Their detractors did not yet understand that civil
disobedience, as disruptive as it can be, is based on a strong sense of political
obligation and a deep respect for the constitution of the state. Quakers were
not antinomians of the usual de¬nition.
The advent of the peace testimony served to lessen persecution, but it also
enabled Friends to achieve liberty in such a way that it would be permanent.
While religious discrimination and persecution did not halt entirely, Quaker
activism embedded the ideal of religious liberty “ or at least toleration “ in
the political consciousness, conscience, and laws of the nation. Religious per-
secution, as Isaac Penington knew, “will always be committed in nations and
governments, until the proper right and just liberty of men™s consciences be dis-
cerned, acknowledged and allowed.”162 In discussing popular liberties, Charles
McIlwain describes the development of the modern constitution as a process
whereby a more distinct line was drawn between the gubernaculum and juris-
dictio, the power of the government in relation to the rights of the people. It is
clear that this line was darkened by religious dissenters who drew the limits of
gubernaculum where God™s jurisdiction began “ in the realm of the conscience.
And in subsequent years, the line surrounding conscience was secularized and
applied in a broader range of con¬‚icts. As John Dickinson would write in 1774,

159 Smith, A Cry against Oppression and Cruelty, 11. Smith™s response in writing was: “Now let
it be considered how that form of Law can be good and just, wherein things are expressed
otherwise then it is, as so to say the People are met together by force of Arms, when the least
appearance of such a thing cannot be found amongst them.”
160 A Brief Relation of the Proceedings, &c., 3.
161 The Liberty of the Subject by Magna Carta [1664] in Quaker Tracts, vol. 6 (London, 1663“64).
Also in the same volume, see Christian Tolleration.
162 Isaac Penington, Concerning Persecution . . . (London, 1661), title page.
64 Quaker Constitutionalism in Theory and Practice

“Whatever dif¬culty may occur in tracing that line, yet we contend, that by the
laws of God, and by the laws of the constitution, a line there must be, beyond
which [the government™s] authority cannot extend.”163 How these slippery lim-
its “ slippery because the bounds of the conscience could change depending on
the individual interpretation of God™s will “ were enforced by the people, how-
ever, was as important as de¬ning them. In their nonviolent protest, Quakers
reinforced the fundamental legitimacy of the government even as they limited
its scope and rede¬ned its role.
As Quakers were developing their principles and process and enacting them
in their ecclesiastical polity, they were also beginning to imagine how their
process would function on a much larger scale. When they began writing
political theory and implementing civil constitutions of their own, they applied
the lessons learned from their own efforts at establishing church government.

163 John Dickinson, An Essay on the Constitutional Power of Great-Britain over the Colonies in
America (Philadelphia, 1774), 34.

A Sacred Institution
The Quaker Theory of a Civil Constitution

The late-seventeenth century was an intensely creative period in Quaker polit-
ical thought. Between 1669 and 1701, members of the Society wrote and
implemented at least seven constitutions both ecclesiastical and civil. Yet the
idea of Quaker constitutionalism is oxymoronic to many political historians,
who have considered Quakers to be quietistic “withdrawers” from civic life;
this is despite the fact there is a substantial body of literature that attests to
their political activities. But while scholars have undertaken important exam-
inations of the political philosophy of William Penn and studies of practical
politics in Pennsylvania, few have attempted to explore the thought of Quakers
as a body in detail and with consideration of their theology.1 Moreover, those
who address the topic of their theory disagree on how to classify it. Some situate
them in the Whig tradition; others count them as Tories during the American
Revolution; and others simply deny that speci¬c principles of theirs are whig-
gish, but do not offer much beyond that.2 But to categorize them within any
single early modern tradition or language causes us to imagine af¬nities where

1 A work that treats Penn™s constitutional thought is Richard Alan Ryerson, “William Penn™s
Gentry Commonwealth.” He notes the main in¬‚uences on Penn of the usual early modern
traditions, as he terms them, “radical dissenter-Leveller, Commonwealth(man), Whig, and Tory-
patriarchal” (395). Although he writes that there were “distinctive . . . radical Quaker additions”
to Penn™s constitutions, he does not examine the underlying theologico-political thought (403).
2 For works on Quaker politics, see the Introduction, fn. 9. Dunn counts Quakers as Whigs (Penn
repudiated Whiggism in 1680. See “Persuasives to Moderation,” in Politics and Conscience,
132“61), as do Bauman in For the Reputation of Truth and Fredrick Tolles in Meeting House
and Counting House, passim. Endy also included Penn in this faction, noting the same limitations
as Dunn (William Penn and Early Quakerism, 342). From Beatty™s analysis of Penn™s thought,
we can infer that he would agree with this assessment. See Edward Corbyn Obert Beatty, William
Penn as Social Philosopher. More recent is Andrew R. Murphy, Conscience and Community,
170. Others, including Alan Tully in Forming American Politics and Gary Nash in Quakers and
Politics, disagree with this characterization and note some departures in Quaker thinking from
conventional Whig thought. See “Understanding Quaker Pennsylvania,” Chapter 7 and passim,
in Tully Forming American Politics; and Nash, Quakers and Politics, 46.

66 Quaker Constitutionalism in Theory and Practice

none exist and to ignore important variations. As Quakers themselves said,
“neither are we for one party or another.”3 An exegesis of their theory on its
own terms is long overdue. Their ideas overlapped in some signi¬cant ways
with other thought of the seventeenth and eighteenth centuries, but they came
to them often through unique routes and for peculiarly Quaker ends. More-
over, the differences between Quakerism and Whiggism, or any other strain of
thought at their time, put them decidedly out of step with their contemporaries
in fascinating and important ways.
In many ways, Quakers most closely resemble Whigs, which is not sur-
prising. They had many of the same concerns, and they drew on the same
classical and contemporary sources. The key to the differences lies in religious
in¬‚uences. In the last few decades, scholars have explored the contribution of
religion to Anglo-American political thought and constitutional development.
They have focused on reformed Calvinism, and their work has revealed it to
be an important in¬‚uence. The republican ideology at the American Founding,
they argue, is a sort of secularized Puritanism.4 But, because Puritanism proper
had long since vanished by this period, to use this idea as a means of inter-
preting theories at the Founding necessitates an abstraction of Puritanism “
there were no Puritan governments in the late-eighteenth century, and what
remained of Puritan thought was much altered and diluted from its original
There was, however, at least one functional Quaker government at the
Founding and an active, living theology. And importantly, Quakerism is not
a branch of reformed Calvinism. It grew out of the Puritan Revolution and
thus shares with Puritanism some important theological tenets such as the
importance of the individual™s relationship with God; the idea of a voluntary
relationship between God, the individual, and the faith community; and a dis-
trust of hierarchy and ritual. But Quaker theology differed in signi¬cant ways
from Puritanism, most notably in Friends™ belief in the possibility of universal
salvation, the peace testimony, a much greater degree of spiritual egalitarian-
ism, the authority of immediate revelation equal to or above Scripture, and the
possibility for human perfection. The virulent animosity of Puritans toward
Quakers tells us clearly they did not see their faiths as the same. Insofar as

3 Edward Burrough, quoted in Braithwaite, The Beginnings of Quakerism, 466.
4 Gordon S. Wood, The Creation of the American Republic, 1776“1789 (New York: W. W.
Norton, 1972), 418. Perry Miller is responsible for bringing American Puritanism to the atten-
tion of political scholars. Some have broadened the topic to include pietistic Calvinism in the
mid-eighteenth century. See, among others, the work of Patricia Bonomi, John Patrick Dig-
gins, Daniel Elazar, Nathan O. Hatch, Alan Heimert, James H. Hutson, Donald S. Lutz, Wilson
Carey McWilliams, Sydney Mead, Edmund Morgan, Mark A. Noll, Ellis Sandoz, Harry S. Stout,
and Michael P. Zuckert. Speci¬cally, on Puritan covenantal theology as a basis for American
constitutionalism, see Lutz, “Religious Dimensions in the Development of American Constitu-
tionalism,” Emory Law Journal vol. 31, no. 1 (1990), 21“40. For the in¬‚uence of Calvinism
on Locke, see John Dunn, The Political Thought of John Locke: An Historical Account of the
Argument of “The Two Treatises of Government” (Cambridge: Cambridge University Press,
1969; rpt. 1995), 188“89.
Quaker Theory of a Civil Government 67

their theologies differed, so did the political theories and practices that arose
from them. Moreover, and very importantly, Quaker political ideas in the late-
eighteenth century were far from “secularized.” Although there were people
who extracted certain Quaker ideas and used them in a secular way, Quakers
themselves were a powerful political force as a religious body. Thus Quaker
thought emerged and continued as a divergent strain from that of Puritan-
informed Whiggism, yet one that comported less perfectly with Toryism. Also,
it had powerful elements of what we might term classical liberalism and repub-
licanism, as well as signi¬cant in¬‚uence from the British common law tradition,

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