. 3
( 12)


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,
but neither can it be described using only these traditions.
Quaker theory comes into partial focus with the writings of a few leading
seventeenth-century Quakers.5 Their political treatises as well as the constitu-
tions they drafted for West Jersey and Pennsylvania in the latter decades of
the seventeenth century give a political form to the faith and practice estab-
lished by their religious Society. The following is not an examination of all
the sources that combined to make up Quaker political thought.6 Rather it
undertakes to show how their political theory was informed by their theology
and ecclesiology. In the ¬rst instance, it will explain the Quakers™ epistemol-
ogy of fundamental law, which is the basis for their political theory. Their

5 The analysis concentrates on the works of Isaac Penington and William Penn, two Quakers who
can rightly be called political philosophers. It is safe to assume, however, that their views in
this early stage of the formation of their theory were representative of the body of the Society
of Friends. When the Quaker church government was established in the 1660s and 1670s,
everything that was published by Quakers had to be critiqued and approved by the church to
ensure that Friends were in unity with it before it was released to the public.
An argument might be made for considering Gerrard Winstanley a Quaker political theorist.
Many tenets of his philosophy are the same or strikingly similar to the articulations of Penn
and Penington. Moreover, there is circumstantial evidence that Winstanley became a Quaker
later in life. But I have chosen to leave him aside in this discussion because, although many of
his ideas during his Digger phase were the same as Quakers™, there were others that differed
signi¬cantly. And although the evidence of his later Quakerism is convincing, it is ultimately not
fully conclusive. Finally, unlike Penington, who also wrote many of his treatises before he turned
Quaker, Quakers never claimed Winstanley and his writings the way they did Penington and
his work. On Winstanley and his thought, see mainly the work of Christopher Hill; also James
Alsop, “Gerrard Winstanley™s Later Life,” Past and Present no. 82 (1979), 73“81. John Lilburne
was another radical theorist who ended his life a Quaker, but whose thinking before then was
more Calvinist. See Diane Parkin-Speer, “John Lilburne: A Revolutionary Interprets Statute and
Common Law Due Process,” Law and History Review vol. 1, no. 2 (1983), 276“96.
6 I am referring here to the secular in¬‚uences on Quaker constitutionalism. There is strong evi-
dence that they drew on the ideas of Bacon, Harrington, and Milton, among many others whose
ideas were compatible with their theology and practice. The works cited earlier on the thought
of Penn cover some of this.
The following discussion has much in common with Larry D. Kramer™s The People Them-
selves: Popular Constitutionalism and Judicial Review (New York: Oxford University Press,
2004). Kramer traces the early modern understanding of a constitution as something shaped,
reviewed, and amended by the people. Yet, though his topic is the same, his focus is on the
American Founding and adheres to Whig thought. It does not deal with the question of civil
68 Quaker Constitutionalism in Theory and Practice

unconventional mode of legal discernment and decision making conditioned
their understanding of what was contained in a constitution, how political
arrangements should be constructed, and, most importantly, what should be
done if the government overstepped its limits or ¬‚aws were perceived in the
constitution. These theories were political versions of their religious under-
standings and arrangements. Thus, although they shared many political goals
with their contemporaries, their ideology and their methods for achieving these
ends were as peculiar as their religious doctrines and institutions.

Discernment of Fundamental Law
The singularity of Quaker constitutionalism lies in its casuistic epistemology
of fundamental law. As many other Englishmen, Quakers believed that there
was a fundamental, higher law that came from God. For most, God planted
the law of nature in man, and man accessed it through his own reason.7
Quakers, by contrast, believed that the fundamental law came directly to man
through God and was immediately discernable through what William Penn
called “Synteresis.”8 The concept of synteresis is an old and confusing one,
and there does not appear to have been any more agreement on the de¬nition
of the term over the centuries than there was on the meaning of fundamental
law. It can, however, be understood loosely as using one™s conscience as a guide
to follow the divine will. Before Penn, philosophers and theologians from Plato
to Aquinas to William Ames debated the subtleties of the term. Many cited
Scripture and described it as “the Lord™s Candle” in the conscience. Penn
described it as “That Great Synteresis, so much renowned by Phylosophers
and Civilians, learns Mankind, to do as they would be done to.”9 But as often,

7 On the origins of and interpretation fundamental law, see, in addition to Kramer, J. W. Gough,
Fundamental Law in English Constitutional History (Oxford: Oxford University Press, 1955);
Charles Howard McIlwain, The High Court of Parliament and Its Supremacy (New Haven,
CT: Yale University Press, 1910); Edward S. Corwin, “˜Higher Law™ Background of American
Constitutional Law,” in Corwin on the Constitution: Volume One: The Foundations of American
Constitutional Political Thought, the Powers of Congress, and the President™s Power of Removal
(Ithaca, NY: Cornell University Press, 1981), 79“139; B. Behrens, “The Whig Theory of the
Constitution in the Reign of Charles II,” Cambridge Historical Journal vol. 7, no. 1 (1941),
42“71; Martyn P. Thompson, “The History of Fundamental Law in Political Thought from
the French Wars of Religion to the American Revolution,” The American Historical Review
vol. 91, no. 5 (1986), 1103“28; Michael Zuckert, Natural Rights and the New Republicanism
(Princeton, NJ: Princeton University Press, 1994).
8 Penn, England™s Present Interest Discovered, 1.
9 William Penn, The Great Case of Liberty of Conscience (London, 1670), 23. It is unclear exactly
what part of speech Penn and others considered “synteresis” to be “ whether it was a thing
or a process. Earlier theologians seemed to use it as a noun such as “light,” “conscience,” or
“reason.” Penn used it this way as well, but the suf¬x -sis indicates that it was a process as well “
a process of looking inward to ¬nd the light or reason. The Oxford English Dictionary de¬nes it
as “A name for that function or department of conscience which serves as a guide for conduct;
conscience as directive of one™s actions.” In this context, it makes sense to consider it more of a
“function” than a thing; more a way of discerning the Light than the Light itself.
Quaker Theory of a Civil Government 69

earlier thinkers equated this Light with the light of reason. Although aspects
of the idea of synteresis had become an accepted part of English thought,
the word synteresis itself had become obsolete by Penn™s time. Some of its
meaning, however, was transferred into the terms “instinct” and the “spark of
knowledge” that man knows through nature.10
While on the surface, the distinction between the natural law “promulgated
and made known by reason only”11 and synteresis may seem negligible “ and
may in fact have been for some thinkers “ it was signi¬cant for Quakers.12
Reason and Light for Quakers were distinctly separate things. Reason, which
was of man, was corrupt and unreliable.13 In his Apology, Robert Barclay
asserted that when man is fallen, he is “deprived the Sensation (or feeling) of
this Inward Testimony, or Seed of God and is subject unto the Power, Nature,
and Seed of the Serpent, which he sows in Men™s Hearts, while they abide in
this Natural and Corrupted State.” “Man therefore, as he is in this State, can
know nothing aright,” explained Barclay, “until he be . . . united to the Divine
Light . . . Hence are rejected the Socinian and Pelagian Errors, in exalting a
Natural Light.”14 Reason could interfere with an accurate understanding of
the divine will and direct man to act in his own self-interest. Thus the Light
and reason as ways of knowing were not interchangeable for Quakers and,
when in con¬‚ict, the former superseded the latter. It is important to note,
however, that Penn af¬rms that the “Eternal Principle of Truth and Sapience”
which are the “Corner-Stones of Human Structure, the Basis of reasonable
Societies,” and which are discovered through synteresis, should be “agreeable

10 Good brief discussions on the origins and use of the word are in Robert A. Greene, “Synderesis,
the Spark of Conscience, in the English Renaissance,” Journal of the History of Ideas vol.
52, no. 2 (1991), 195“219 and “Instinct of Nature: Natural Law, Synderesis, and the Moral
Sense,” Journal of the History of Ideas vol. 58, no. 2 (1997), 173“98. A more detailed analysis
is Timothy C. Potts, Conscience in Medieval Philosophy (Cambridge: Cambridge University
Press, 1980). Potts notes that Philip, Bonaventure, and Aquinas understood the conscience and
light to be two distinct things, which was also how Quakers understood it. An analysis of
casuistry that explains synteresis as a subversive force is in Lowell Gallagher™s Medusa™s Gaze:
Casuistry and Conscience in the Renaissance (Stanford, CA: Stanford University Press, 1991).
See also Michael C. Baylor, Action and Person: Conscience in Late Scholasticism and the Young
Luther (Leiden: E. J. Brill, 1977); and Lynne Courter Boughton, “Choice and Action: William
Ames™s Conception of the Mind™s Operation in Moral Decisions,” Church History vol. 56, no.
2 (1987), 188“203.
11 John Locke, The Second Treatise of Civil Government, sect. 57.
12 Melvin Endy is the only author of whom I am aware who discusses Penn™s use of the word
“synteresis.” He equates this in Penn™s mind with the phrase “Universal Reason,” describing it as
the combined “divine-natural law” (William Penn and Early Quakerism, 339). The description
is useful, and I agree with this equation where Penn is concerned; but, for reasons stated here,
I believe this formulation would not necessarily have been the general understanding among
13 Perry Miller notes that Puritans “also held that these remains [of the divine image in man], in
the form of natural reason or ˜the light of nature,™ were exceedingly unreliable, but they had
rescued them from the rubbish heap where Calvin had cast them” (“The Marrow of Puritan
Divinity,” 74).
14 Barclay, Apology, 5“6.
70 Quaker Constitutionalism in Theory and Practice

with right reason.”15 There were also other guides for knowing the law. These
were the same sort that Quakers used in their worship and religious business “
Scripture, learned thinkers, and historic and apostolic precedent. In the civil
realm, however, they also used the precedent of statute law, as long as it was in
keeping with divine fundamental law.16 Custom, on the other hand, which was
also of man, was suspect because it was often not strictly based on divine law,
but on human habits much like the rituals of the Roman Church. Moreover, it
was unwritten, and thus arbitrary.
The Quaker process of understanding God™s law, then, was not the delibera-
tive, discursive process we imagine when we think of a body meeting to establish
government or decide on laws. Rather, it was something akin to intuition, a
nondeliberative process “ the same process they used in religious worship to
know God.17 Penn™s use of the word “synteresis” must have been an inten-
tional evocation of an earlier understanding of the term, and one related more
directly to immediate revelation, that would thus distinguish their thought from
a range of other contemporary ideas. Advocates of natural law theory objected
to the irrationality of the process and the wrong use of religion in politics18 ;
and those of less enthusiastic religious convictions were uncomfortable with
the antinomian implications of it. Penn™s principle of synteresis is clearly the
political equivalent of the religious doctrine of the Inward Light “ in both reli-
gious and political terminology, the conscience is the medium through which
God reveals his law to men. “[T]he Light of [God™s] Son,” said Penn, “shines in
Man™s Conscience; Therefore the Light of Christ in the Conscience must needs
have been the General Rule”; and “That no Man can know what is agreeable
to God, except a Man hear God himself, and that must be within.”19
The Quaker way was thus not a process of “reasoning” or noetic intelligence
but spiritual discernment.20 In his Essays on the Law of Nature (c. 1663“64),
Locke derided the Quaker way of knowing the law. “We do not maintain,”
he said, “that this law of nature . . . lies open in our hearts, and that as soon
as some inward light comes near it . . . it is read, perceived, and noted by the
rays of that light.”21 Likewise, Cato wrote that “There is no government now

15 Penn, England™s Present Interest Discovered, 6; and Penn, “Fundamentall Constitution of Penn-
sylvania,” in Mary Maples Dunn and Richard Dunn, eds., The Papers of William Penn (Philadel-
phia: University of Pennsylvania Press, 1981“87), 2: 142.
16 Penn, England™s Present Interest Discovered, 6.
17 Greene, “Synderesis,” 198.
18 See Ellis Sandoz on Locke™s distinction between intuition or “inward” knowledge and reason
(65); and his rejection of enthusiasm (73). Ellis Sandoz, A Government of Laws: Political
Theory, Religion, and the American Founding (Baton Rouge: Louisiana State University Press,
19 Penn, Discourse of the General Rule, 4“5.
20 Sandoz, A Government of Laws, 63. Sandoz makes a distinction between Aristotle™s under-
standing of noetic, as “the divine something in man,” and Locke™s, which is removed from God
who is not knowable through “direct intuitive evidence” (66“67).
21 John Locke, Essays on the Law of Nature, in Paul E. Sigmund, ed., The Selected Political
Writings of John Locke (New York: W. W. Norton & Co.), 173. He reiterates this assertion
Quaker Theory of a Civil Government 71

upon earth, which owes its formation or beginning to the immediate revelation
of God.”22 Quakers were undoubtedly foremost among the sectarian radicals
from whom Locke and Hobbes were trying to preserve the English polity.23
Despite their advocacy of synteresis or the Light, as we have seen in Chapter
1, Quakers were not hostile to reason, but they were highly suspicious of it when
it was divorced from the Light. The earliest and most devout Quakers distrusted
it most, but there were always some, such as Penn, who placed signi¬cant
emphasis on it and did not shy away from using the language of natural rights.24
As Quakerism evolved through the eighteenth century and into the nineteenth,
the ideas of Light and reason gradually merged to become synonymous for
some Quakers.25 But before this, the way in which Quakers balanced the
two allowed them to embrace the scienti¬c rationalism of the Enlightenment
without the paganism, and made them, without contradiction, among the most
serious Christians as well as the greatest scientists and supporters of science in
the eighteenth century.26 Their approach to scienti¬c inquiry was very much
like that of Newton, who believed that it was done for the glory of God,
and with his help. There was a revelatory quality of Newtonianism that was
similar to Quaker “seeking” in that God revealed the secrets of nature to the
scientist in his own time. The laws of nature, Newton said, “will be discovered
to us” and we will then be “allowed to penetrate to the ¬rst cause [i.e., God]
himself, and see the whole scheme of his works as they are really derived from

in Essay Concerning Human Understanding (1689) and in the Two Treatises of Government
(1689). Interestingly, however, John Dunn argues that in The Reasonableness of Christianity
(1695), Locke comes to “a sort of fedeist voluntarism” in his religious thought (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“98).
22 John Trenchard and Thomas Gordon, Letter No. 60, in Ronald Hamowy, ed., Cato™s Letters,
or Essays on Liberty, Civil and Religious, and Other Important Subjects (Indianapolis: Liberty
Fund, 1995), 1: 413“20. 413.
23 See also Thomas Pangle™s discussion of reason versus revelation in Chapter 17, “The Divine
and Human Supports for Justice,” in The Spirit of Modern Republicanism: The Moral Vision of
the Founding Fathers and the Philosophy of John Locke (Chicago: University of Chicago Press,
1988), 198“229; Paul A. Rahe, Republics Ancient and Modern: Volume Two: New Modes &
Orders in Early Modern Political Thought (Chapel Hill: University of North Carolina Press,
1994), 266“67; as well as Rahe on Locke™s distinction between “the God of revelation” and
“nature™s God” (252“63).
24 Indeed, as Hugh Barbour notes in The Quakers in Puritan England, Penn was unusual among
Quakers in that he did not make stark a distinction between Light and reason (244“45). But,
as we shall see, this was not the only area in which Penn™s political philosophy departed from
that of the majority of Quakers.
25 Thomas D. Hamm, “The Problem of the Inner Light in Nineteenth-Century Quakerism,” in
M. L. Birkel and J. W. Newman, eds., The Lamb™s War: Quaker Essays to Honor of Hugh
Barbour (Richmond, IN: Earlham College Press, 1992), 101“17.
26 Tolles, Meeting House and Counting House, esp. 205“29. Brooke Hindle, “The Quaker Back-
ground and Science in Colonial Philadelphia,” Isis vol. 46, no. 3 (1955), 243“50. Geoffrey
Cantor, Quakers, Jews, and Science: Religious Responses to Modernity and the Sciences, 1650“
1900 (Oxford: Oxford University Press, 2005); Matthew Stanley, Practical Mystic: Religion,
Science, and A.S. Eddington (Chicago: University of Chicago Press, 2007).
72 Quaker Constitutionalism in Theory and Practice

him, when our imperfect philosophy shall be completed.”27 This was also the
Quaker view of how man would come to understand the fundamental laws of
the polity.

The Civil Constitution and Its Components: The Basis
for Political Obligation
The Quaker belief that the fundamental law was discerned through syntere-
sis conditioned their understanding of the origin of the civil constitution, the
structure of the government and the positive laws, and the process by which
man governed. Because their epistemology of law was different from most,
their constitutional theory does not conform entirely to the usual understand-
ing of the “ancient constitution” or a “modern” idea of it.28 Very generally,
the notion of the ancient constitution is that a civil constitution is comprised of
all aspects of government and laws “ the fundamental law; positive laws (both
written and jus non scriptum); and the institutions, customs, and structure of
government.29 Conversely, the principles of the constitution are embodied in
all these things. In contrast to this ancient notion was a modern view that sep-
arated the constitution from the government: The people were ¬rst constituted
as a body. They then created a written constitution that embodied fundamental
law and limited the government.30 A nation™s government is, by extension, only
a creation of the constitution and any acts of government to which the peo-
ple consent are subordinate to that constitution. Consequently, in the modern
view there is a disjuncture between the constitution, on the one hand, and the
governmental structures, institutions, and laws on the other. The important dif-
ference between these two models for our purposes, and what will be explored
subsequently, is in the notion of change “ whether change is acceptable, under
what circumstances, and to what degree.

27 Colin Maclaurin, An Account of Sir Isaac Newton™s Philosophical Discoveries (1748), 23,
quoted in Robbins, The Eighteenth Century Commonwealthman, 71.
28 This brief de¬nition draws on Charles McIlwain, Constitutionalism Ancient and Modern
(Ithaca, NY: Cornell University Press, 1947), 1“22.
29 These words “ constitution, government, law, polity, etc. “ are problematic because of their
various and overlapping meanings in different time periods. In this study, I often use the
words constitution and government interchangeably, as did thinkers in the seventeenth and
eighteenth centuries. These words also had broader meanings than they do today. For example,
constitution meant a written document, but also “ and more usually “ the composition of a
polity. I try to distinguish between these two meanings as I use them. Similarly, government
meant, among other things, constitution, but also a geographic area controlled by a particular
regime, such as a colony. For a discussion of their meaning in historical context, see Gerald
Stourzh, “Constitution: Changing Meaning of the Term,” in Terrence Ball and J. G. A. Pocock,
eds., Conceptual Change and the Constitution (Lawrence: University Press of Kansas, 1988),
30 Endy makes brief note of the priority that William Penn placed on fundamental law and the
primary role it should play in limiting both kings and magistrates (William Penn and Early
Quakerism, 338“39).
Quaker Theory of a Civil Government 73

Quaker constitutional thought was an amalgam of both of these understand-
ings of a constitution with some differences from each. According to Quaker
thought and practice, man originally lived without formal government. This
time was man™s state before the fall, similar, but not quite identical to what
Lockeans would have identi¬ed as the state of nature. It was, as Penn wrote
in his First Frame of Government for Pennsylvania (1682), a time in which
“[t]here was no need of Coercive or Compulsive means; the Precept of Divine
Love and Truth, in his own Bosom was the Guide and Keeper of his Inno-
cency.”31 In this pure condition, man was governed by the “general rule” of
God™s Light.32 But according to God™s plan, for a number of reasons, prelap-
sarian man had need of civil government as well. The rest of the political
arrangements then followed “ written constitution, government, positive law.
In this sense, Quaker constitutionalism was like the modern. But unlike the
modern understanding and more like the ancient, not only was the fundamen-
tal law embodied in the constitution, so too was the civil government and
the laws it created and implemented. Quakers™ was a variation of divine right
Similar to most Englishmen, Quakers held that man was obliged to obey and
maintain government because it was ordained by God. In his First Frame, Penn
quoted Romans 13 that “The Powers that be are ordained by God: Whosoever
resisteth the Power, resisteth the Ordinance of God.” But more than this,
even, Penn wrote that “Government seems to me a part of Religion itself, a
thing Sacred in its Institution and End.”34 According to Friends, there were
several reasons for this sacred institution. These are, in the main, similar to the
reasons given by Whigs for why man created government “ to maintain peace
and punish the wicked. But there were some signi¬cantly different emphases
on these things for Quakers that in turn reveal other purposes and priorities
for government. Quaker political theory embodied an optimism about man™s
potential for good that is absent from most other thought at the time. As with
the ecclesiastical polity, the main reason for the ordination of the civil polity
was to facilitate charity and free worship. While charity was an important
aspect in the thought of many seventeenth-century philosophers, most also
held that government was instituted mainly for the purpose of controlling man™s
baser impulses and punishing his transgressions. Hobbes is the most extreme
example of this, but even Locke, for whom peace with minimal interference
from government was paramount, was most concerned with man™s propensity
for bad. Locke™s optimism (expressed in the idea of the consent of the governed)
notwithstanding, most early modern political thought held that government is

31 William Penn, First Frame of Government, PWP, 2: 212.
32 Penn, Discourse of the General Rule.
33 To be clear, it was a theory of the divine right of government “ the belief that government was
created by God “ as opposed to the divine right of kings.
34 Penn, First Frame, 212.
74 Quaker Constitutionalism in Theory and Practice

founded on force and, often, violence.35 Paine summarized the idea when he
said that “government is but a necessary evil.”36 But Quakers held that there
was more possibility for the good in man to prevail. They did not believe that
man™s purity was ultimately lost. They did not believe in original sin. Barclay
wrote that “the Seed [of evil] is not imputed to Infants, until by Transgression
they actually join themselves therewith.” Man will inevitably sin, they believed,
but because of the availability of the Light to all people, there was the possibility
of attaining perfection in spite of inevitable transgressions.37 Their theology
thus tempered and amended the more pessimistic understanding of man™s sinful
nature, and their institutions were organized accordingly.
Thus Quaker civil government, like their ecclesiastical government, was not
instituted by God primarily for coercing and punishing man. On the contrary,
civil government was “as capable of Kindness, Goodness, and Charity as a
more private Society.” And though one of the purposes was certainly “To
Terri¬e Evil-doers,” Penn asserted, “They weakly Err, that think there is no
other use for Government, than Correction, which is the coarsest part of it:
Daily experience tells us, that the Care and Regulation of many other Affairs,
more soft and daily necessary make up the greatest part of Government.”38
While there were others with ideas such as this, they never put them into effect
in English politics.39 The Quakers, on the other hand, did in their utopian
“holy experiment” in Pennsylvania.40
Of course, even Quakers knew that most men had not puri¬ed themselves
enough to follow God™s law and were far from perfect. Therefore, Penn said,
“we must recur to some lower but true Principle” “ “Civil Interest.”41 The

35 See Paul A. Rahe, Republics Ancient and Modern: Volume Three: Inventions of Prudence:
Constituting the American Regime (Chapel Hill: University of North Carolina Press, 1994),
36 Thomas Paine, Common Sense (Philadelphia, 1776), 1.
37 Beatty notes that, among other inconsistencies in Penn™s thought, his sense of man™s goodness
seems to have changed in later years, as exempli¬ed in his tract An Essay towards the Present
and Future Peace of Europe (London, 1693), which depicts a state of nature resembling that
of Hobbes more than Locke or Rousseau. By 1693, Penn was already embittered by dif¬culties
with Pennsylvania. His Quaker brethren in the Pennsylvania Assembly had given him trouble
from the beginning, and at the time, he had been deprived of his government by the crown. It
would not be surprising if his faith in mankind failed. To understand the general Quaker view
of the purpose of government, therefore, we can safely refer to their theology.
38 Penn, First Frame, 212. See also John Crook, An Apology for the Quakers Wherein is shewed
How they Answer the Chief Principles of the Law, and the Main Ends of Government [1662],
in Quaker Tracts, vol. 5 (London, 1662).
39 Robbins notes that “[t]hough Cumberland propounded no political plan for an egalitarian
utopia, he provided almost as an essential part of the philosophical presuppositions of the
reformers as his contemporaries, John Locke and Isaac Newton” (The Eighteenth-Century
Commonwealthman, 78).
40 For more on Penn™s optimism about the ends government and its consensual functioning, see
Endy, William Penn and Early Quakerism, 354.
41 William Penn, One Project for the Good of England: That is, Our Civil Union is Our Civil
Safety (London, 1679), 1.
Quaker Theory of a Civil Government 75

nation™s survival would be secured by a civil government that protects the
people™s most basic civil right, the “free Exercise of their Worship to Almighty
God.”42 Government, he explained, “was an “Emanation of the same Divine
Power that is both the Author and Object of Pure Religion,” and as such, it
was also a coercive power to restrain and punish.43 But still Penn believed that
this lower order was ultimately benevolent and, most signi¬cantly, for divine
ends. It existed to protect all individuals so that they would be free of earthly
coercion and free to ¬nd God for themselves.44 The worst civil injustice as
far as seventeenth-century Quakers were concerned was religious persecution.
With Penn in the lead, their crusade was to assert liberty of conscience as a
part of the fundamental law, the ancient constitution, and to secure it as part
of current legal practice. In this, Quakers faced two main challenges: jurists
who could easily deny the existence of this liberty in the common law; and
the great diversity of religious groups in England, each seeking to impose its
faith on others. “No sooner one Opinion prevails upon another,” said Penn,
“(though all hold the Text to be sacred) but Human Society is shaken, and the
Civil Government must receive and suffer a Revolution.”45
The one recourse of a people was to unite on the basis of this “lower
principle” rather than a common understanding of God. “Our Civil Union
is our Civil Safety,” he said. Unity in the civil polity was for Quakers as
important as in the ecclesiastical polity and for similar reasons “ to protect
the body from disintegration by either atomizing or domineering forces from
within and to be a refuge from coercive powers from without, such as the
Roman Church. Safety in union meant liberty; and union would be preserved
through religious liberty.46 Everyone must agree to unite, not on the basis
of one imposed understanding of religion, but on the basis of their all being
Protestant dissenters. And as dissenters, they must avoid popery by securing
the one means “ liberty of conscience “ that would allow people to ¬nd the true
religion. Unlike most republican thinkers who believed that political opinion
must be homogenous, Penn argued that “Unity (not as the least but greatest
End of Government) is lost for by seeking an Unity of Opinion (by [coercion])

42 Ibid., 5. See also Andrew R. Murphy, Conscience and Community.
43 Penn, First Frame, 212.
44 We should understand that there is really no equivalent in the ecclesiastical polity of this lower
civil principle. As Barclay made clear in The Anarchy of the Ranters, the church government
had the power to extend positive law to regulate the conscience of the believer (47“65, 73).
45 Penn, One Project, 1.
46 This equation of union, security, and religious liberty by Quakers complicates John Phillip
Reid™s discussion of liberty and security. He ¬nds, convincingly, that the concepts of liberty and
security of property were interchangeable. But while Quakers shared this concern for protection
for property, and also related it to liberty in the ways Reid argues, it is not clear that this was
their only or primary understanding of the concepts of liberty and security. It seems, rather, that
union was held above property as the guarantor of liberty, and religious liberty was, in turn,
the guarantor of union. Property, as is discussed later, was primarily a tool for proselytization.
See John Phillip Reid, The Concept of Liberty in the Age of the American Revolution (Chicago:
University of Chicago Press, 1988), 71“73.
76 Quaker Constitutionalism in Theory and Practice

the Unity requisite to uphold us, as a Civil Society, will be quite destroy™d.
And such as relinquish that, to get the other (besides that they are Unwise) will
infallibly lose both in the end.”47
The image one gets of Penn™s ideal political society is one in which individu-
als might, as he did, stand on the street corner hawking their religious wares. If
the Truth is allowed expression, he believed, the people will ¬nd their way to it.
In this way, Quakers had a view of politics and civic engagement that approxi-
mated modern understandings. They did not believe, as did many Englishmen,
that political differences and potential con¬‚ict were inevitably problematic.
Similar to Machiavelli, theirs was rather a philosophy “ religious and political “
that depended on an amount of disagreement, dissent, and competition of ideas
in order to ¬‚ourish, so long as there was always the fundamental agreement
that the unity of the body was paramount. In their way, Quakers promoted
debate, deliberation, and the search for truth among the people at a time when
many did not believe that popular discourse was possible or relevant.48
While the Quaker idea of toleration seems to be similar, if not identical to
Locke™s, their ideas are distinct on two levels.49 First, as we have seen, the
bases are different in that Locke expected that man should resort to his reason
as a means to political virtue (to the extent that virtue was necessary), and
thus leave his religion at the door to the state house. Quakers, by contrast,
expected that freedom to worship would bring man closer to God and thus
make his civil behavior an expression of Christian love. Second, although
their conceptions of toleration looked much the same in theory, they could
be quite different in practice. Locke asserted that the civil government had no
role in coercing the conscience of the individual. He also granted, as did all
Englishmen, that “obedience is due in the ¬rst place to God, and afterwards
to the laws” and that disobedience was acceptable if the civil government
tried to force the conscience.50 But for Locke, there were limits to toleration
that potentially con¬‚icted with Quaker thought and practice. In his Letter

47 Penn, Great Case, 29. For one of the best succinct discussions of Penn™s ideas of religious liberty,
see Schwartz, “A Mixed Multitude,” 12“35. For a longer discussion, with which this study
sometimes disagrees, see J. William Frost, A Perfect Freedom: Religious Liberty in Pennsylvania
(New York: Cambridge University Press, 1990). On the issue of toleration as modus vivendi
and the subject of toleration in general reconsidered in historical and contemporary context,
see Murphy, Conscience and Community.
48 This is also Alan Tully™s argument in Forming American Politics about the main contribution
of Quakers to American political culture. He ¬nds that their mode of political engagement
in Pennsylvania with its contentious partisanship was the precursor of the First Party System.
Seventeenth-century Trimmers were another group that anticipated the modern idea of politics
as a forum for disagreement. See James Conniff, “The Politics of Trimming: Halifax and the
Acceptance of Political Controversy,” The Journal of Politics vol. 34, no. 4 (1972), 1172“1202.
49 It is necessary here to make a distinction between religious toleration and religious liberty.
Although the two terms are often used interchangeably today, as the following discussing
demonstrates, the ¬rst is more limited than the latter. In their advocacy of religious rights,
Quakers often settled temporarily for toleration even as they continued to press for liberty.
50 John Locke, A Letter concerning Toleration (London, 1689), 61.
Quaker Theory of a Civil Government 77

concerning Toleration (1689), he discussed four grounds on which toleration
should be suspended: beliefs or practices that con¬‚ict with the civil peace;
violation of civil oaths; the idea that political power was based on grace; and
if the faith encouraged loyalty to a foreign government.51 But Quakers de¬ned
the realm of conscience and faith to include civil, ecclesiastical, and social
institutions and customs. They were seeking not mere toleration, but liberty.
With their radical and public expressions of dissent, it is clear how critics could
argue that their behavior con¬‚icted with matters purely civil or social. At one
time or another they were accused of transgressing each of Locke™s articles,
in which case, they had “no right to be tolerated by the magistrate.”52 Locke
believed that Quakers were one of the sorts of antinomians who inappropriately
mixed religion and politics.
Once a people has come together under this lower principle of civil inter-
est, they must discern and codify the fundamental law into a written doc-
ument. The constitution was an expression of God™s law. The Magna Carta,
explained Penn, is “not the Original Establishment, but a Declaration and Con-
¬rmation of that Establishment.”53 This language clearly re¬‚ects the Quakers™
understanding that a civil constitution is in its way like Scripture, which they
described as “a Declaration of the Fountain but not the Fountain it self,” or
like their Discipline, the paper constitution that followed the assembly of the
religious body.54 Moreover, the constitution, like Scripture or the Discipline,
is not man-made in the usual sense of the term. It was a collaboration between
God and man.
Although Penn advised his children not to be “meddlers in Government,”
if he meant to convey an image of quietism, it was likely part of the Quakers™
campaign to dispel perceptions of them as seditious and destructive of civil
government. But Penn quali¬ed his statement, saying that man should not work
in government “Unless God requires it of you.”55 And what God sometimes
required of man was that he act as a vehicle for the transmission of his law
to the rest of mankind.56 A civil constitution, then, was not man-made per
se, but was rather created by God and then discerned through synteresis and
transcribed by men.57 It was like any other divinely ordained guide executed by
man such as the Scriptures, apostolic precedent, or legal precedent that was in
keeping with the spirit of the divine law. Moreover, because it came from God,

51 Ibid., esp. 62“67.
52 Locke, Letter concerning Toleration, 65.
53 Penn, England™s Present Interest Discovered, 29.
54 Barclay, Apology, 5
55 William Penn quoted in Isaac Sharpless, Quakerism and Politics (Philadelphia: Ferris & Leach,
1905), 79.
56 Beatty would agree with this interpretation. “A Quaker,” he says, “could believe in God as the
source of society and in the human race as the means chosen by Divinity to work out his plans”
(William Penn as Social Philosopher, 20).
57 See Zuckert on government as a man-made artifact (Natural Rights, 9“10).
78 Quaker Constitutionalism in Theory and Practice

it was sacred. There was, therefore, a powerful sense of political obligation for

Political Arrangements
Another basis for political obligation was in the structural arrangements dic-
tated by the civil constitution. In Quaker thought, the fundamental law came
directly from God, who ordained both a written constitution and civil govern-
ment. The political arrangements “ the “order” (the structure of government)
and the “method” (the decision-making process) “ were also ordained as part
of the constitution. If liberty was safety, safety came through the order and
method of government. At ¬rst glance, because of discrepancies between early
theory and practice, it appears uncertain what form of government Quakers
preferred. In the preface to his First Frame, Penn was intentionally vague on
this topic, writing “For particular Frames and Models, it will become me to
say little; and comparatively I will say nothing.” His reasons were several, but
the most important were that the age was “too nice and dif¬cult” and that
while all agreed that happiness was the end of government, most people did
not know the right way to use “Light and Knowledge” to achieve that end.
Quakers themselves wrangled about this issue amongst themselves for several
decades as governors of their own colonies. But all things considered, from the
Quakers™ theory, their own frames of government, and their actual political
arrangements, it is clear that most Friends would eventually agree that there
was one true way in which government should be structured. “Any Govern-
ment is Free to the People under it (what-ever be the Frame) where the Laws
Rule,” wrote Penn, “and the People are a party to those Laws.”58
Early in his thinking, Quaker political theorist Isaac Penington began to hint
about the ideal form of government. Like Penn, his future son-in-law, Penington
favored a strong central government for the sake of unity. In 1653 he articulated
something that sounds much like Plato™s theory of divine competence.59 If there
existed a single ruler who embodied divine will and exercised his power in strict
keeping with God™s law, this would be the best form of rule “ a benevolent
despotism. Penington tentatively agreed that “Absoluteness is best in itself.”
But because no such individual existed, “limitations are safest for the present
condition of man.” Likely with both the divine right of kings and the chaos
of the Interregnum in mind, however, he continued, “[b]ut what if God (from
whom both these had their being, continuation and blessing) be striking at
the root of both Absoluteness and Limitedness, shewing the weakness and
insuf¬ciency of both, and turning them upside down as fast as he discovereth
it?” Penington did not venture a direct answer. Because God had not spoken
to him on these matters, he desired rather “to be silent . . . not only outwardly

58 Penn, First Frame, 213.
59 J. B. Skemp, trans., Statesman: A Translation of the Politicus of Plato (New Haven, CT: Yale,
1952). See also McIlwain, Constitutionalism, 50.
Quaker Theory of a Civil Government 79

before men, but even inwardly in mine own Soul.” But he did offer some
advice to the governors and the governed that gives us a hint of his ideas. “The
governor,” he counseled, needs to remain humble and not “bring forth that
which is not in them.” In the recent revolution, it was Parliament, he said, that
“seemed to spring up with a more excellent spirit, undertaking to rectify that
which was crooked in the foregoing Government, but did they indeed and in
truth effect it?” Penington™s advice to the governed then was “[e]xpect not that
fruit from your Governors, the root whereof is not in them.” Neither, recent
history suggested, should the people look to themselves alone because their
own limits might be faulty “(for man himself knoweth neither his own heart
nor ways, seldom being what he still taketh himself to be).” They should look
elsewhere. “He who is of counsel with the Lord, may know what he intends.”60
This is to say, whether absolute or limited, government by man instead of by
God is always corrupt and oppressive.
A strong central government might come in many forms, but for Quakers
it seems, one was preferable. In most Quaker thought, the strength did not
arise from the top of the political authority structure “ from an executive or
a parliament. Contrary to the usual understanding of divine right theory that
placed right in the hands of a king and obligation on the people, “The Funda-
mental Right, Liberty and Safety of the People,” said Penington, “is radically
in themselves, derivatively in Parliament, their Substitutes or Representatives.”
He wrote these lines some thirty years before Sidney wrote the same in his
Discourses concerning Government (1698), the “textbook” to the American
Revolutionaries.61 This right, safety, and liberty “lieth chie¬‚y in these three
things,” wrote Penington, “in their Choyce of their Government and Gover-
nors, in the Establishment of that Government and those Governors which
they shall chuse, and in the Alteration of either as they ¬nd cause.”62 The last
point is an important one, and one to which we will return in a moment. Penn
agreed in 1675 that “the People” must have “a Share in Judgment, that is, in
the Application, as well as in the making of the Law.”63 He explained that the
English people had at once time exercised a direct control over the government
and had themselves handed it over to their representatives when the population
grew too large.64 In a clear equation of political practices with those of his reli-
gion, he tacitly accused the government of popery because it had divested the
people of their rightful power, lodging it instead with the representatives. In

60 Isaac Penington, A Considerable Question about Government (London, 1653), 5“7.
61 Caroline Robbins, “Algernon Sidney™s Discourses on Government: A Textbook of Revolution,”
WMQ 3rd ser., vol. 4, no. 3 (1947), 267“96. Sidney wrote his Discourses shortly before his
execution in 1683, but they were ¬rst published in 1698.
62 Isaac Penington, The Fundamental Right, Safety and Liberty of the People (London, 1651), 1.
63 Penn, England™s Present Interest Discovered, 23.
64 William Penn quoted in Edmund S. Morgan, Inventing the People: The Rise of Popu-
lar Sovereignty in England and America (New York: W. W. Norton & Company, 1988),
80 Quaker Constitutionalism in Theory and Practice

the ideal constitution, he wrote, there is “no Transessentiating or Transubstan-
tiation of Being from People to Representatives.”65 We might understand this
as the problem of virtual, as opposed to actual representation. Christ and his
power are with the people, Penn clari¬ed, not the representatives. The poten-
tial for Light in all men meant the political responsibility was on individuals to
participate in some capacity.66 Accordingly, in the ¬rst two civil constitutions
that Quakers drafted, most if not all of the legislative powers were given to the
If this were all Quakers told us, we would know very little about their ideal
form of government and only that Quakers agreed with other Whigs that some
element of popular participation was necessary for the legitimacy of a govern-
ment. But the way they envisioned this engagement tells us more about their
ideal structure of government and the role of the people. For Quakers, pop-
ular participation in a civil or ecclesiastical polity was a process of collective
discernment through synteresis. They must combine their understanding of the
Light with those of others to get a complete understanding of God™s will.68
Penington advised the governed that they should not look to their governors
for guidance. If they were oppressed they must instead look to God in them-
selves. “Be still, be quiet,” wrote Penington, “and ye shall see that the Lord
will deal with those that oppress you.”69 In a pamphlet addressed to the King
and Parliament, Penington explained further that those seeking a true under-
standing of the law should free themselves from the “eye which cannot see the
things of God” and the “heart also which is insensible and so runs into the pit.”
Instead, they should seek recourse in the “eye, to which God giveth the true
sight, which foreseeth the evil and seeking an hiding place; and an heart which
feareth its Maker, and waiteth on him for counsel, distrusting its own under-
standing, which it feeleth shallow and apt to err.”70 As in a religious meet-
ing, to understand God the people would use the means typical of Whigs “
history, legal precedent, experience, and reason. But primarily, they should ¬rst
look, as Penn did, for “God™s evidence in my own Conscience” in their relations
with government and only then con¬rm it with “the Judgment and Example of
other Times.”71 Insofar as the discernment of the law was a collective process,

65 Ibid., 22.
66 See also Endy, William Penn and Early Quakerism, 343.
67 See Chapter 4 in this book.
68 This process is not entirely dissimilar from Edward Coke™s understanding of how reason forms
the common law “ as a collective endeavor whose product is greater than any single man could
create. “The commentator™s reason,” writes James R. Stoner, “evidently performs the work of
collection, silently discovering order in multiplicity but making no independent claims.” Reason
was used as a means of interpreting the law as well as a measure of consistency and accuracy in
the development of the law. James R. Stoner, Common Law & Liberal Theory: Coke, Hobbes,
& the Origins of American Constitutionalism (Lawrence: University Press of Kansas, 1992),
69 Penington, A Considerable Question, 5“7.
70 Isaac Penington, Three Queries Propounded to the King and Parliament (London, 1662), 1.
71 Penn, England™s Present Interest Discovered, 35.
Quaker Theory of a Civil Government 81

the divine competence was thus in the people collectively “ a divine sovereignty
by proxy.72 In Quaker theory, the power was in the people like never before
because God was “ or could be “ in all people. In theory at least, there was
no difference between “the people” and the entire population. Here was an
equality and popular political agency that scholars generally do not ¬nd until
the American Founding.73
The ¬rst two constitutions written by Quakers re¬‚ect this concern for pop-
ular sovereignty “ the West Jersey Concessions and Agreements (1676/77) and
the “Fundamentall Constitutions of Pennsilvania” (c. 1681). Both were created
in a similar process “ a collective effort of leading Friends, using advice from
other non-Quakers as well, and with one individual as primary draftsman.74
The authorship of the Concessions is uncertain, but there is good evidence
that its primary draftsman was elder Friend Edward Byllynge; the draftsman
of the Pennsylvania constitution was Penn.75 Scholars have identi¬ed the New
Jersey constitution as “one of the most politically innovative documents of the
seventeenth century,” and the Pennsylvania constitution was “the most liberal
plan of government for Pennsylvania.”76 In addition to other characteristics,

72 As in their religious polity, this idea of popular sovereignty did not translate into egalitarianism
or democracy. For a discussion on Penn™s ideas of social hierarchy, see Endy, William Penn and
Early Quakerism, 356“59.
73 Hill™s work shows how the democratic thinking of Quakers at this time was common among
many radical groups, but he also claims that none of these groups, Quakers included, had a
lasting affect on English or American politics (The World Turned Upside Down, 381). Following
Hill, Morgan ¬nds that “[t]he decline of social status as a force in ecclesiastical polity seems to
have preceded, and may have contributed to, its decline in civil polity” (Inventing the People,
300). Of course, as we have seen, social status was not a determinant of leadership in the ideal
Quaker community. Rather than Quakerism as a leveling force in early America, however,
Morgan ¬nds that the rise of pietism in the First Great Awakening was the greatest religious
element in the development of equality and popular sovereignty in America (295“300). Of
course, pietism, as its adherents and opponents recognized, drew much from Quakerism.
74 This practice departs from the common understanding of the day that the best governments are
created by one man. See Harrington, Oceana and Machiavelli, Discourses. Mary Maples Dunn
argues to the contrary in Politics and Conscience that Penn followed these examples and took
the opportunity to act alone. In their commentary on the “Fundamentall Constitutions” in The
Papers of William Penn, Dunn and Dunn likewise ¬nd that Penn was in favor of drafting alone
(2: 145, n. 6). But it is not clear how they came to this conclusion. They and others have noted
that when Quakers drafted their constitutions, although one man may have taken the lead in
the transcription, it was submitted for review to a number of other people whose changes were
often adopted. They note that there is no evidence that “Fundamentall Constitutions” was not
submitted to “adventurers or settlers” of Pennsylvania for their approval (PWP, 2: 153 n. 1),
but it did undergo a review process by “a range of people” from weighty Friends to non-Quaker
lawyers and political thinkers (PWP, 2: 137). This process is very similar to the one that Michael
Warner claims originated in the American constitutional era in “Textuality and Legitimacy in
the Printed Constitution,” in The Letters of the Republic: Publication and the Public Sphere in
Eighteenth-Century America (Cambridge, MA: Harvard University Press, 1990), 97“117.
75 Mary Maples Dunn, “Did Penn Write the Concessions,” in West New Jersey and The West
Jersey Concessions and Agreements of 1676/77: A Roundtable of Historians, Occasional Papers,
no. 1 (Trenton, NJ: New Jersey Historical Commission, 1979), 24“28.
76 PWP, 1: 387; and 2: 140.
82 Quaker Constitutionalism in Theory and Practice

a common feature of both was the popular control of the legislative process.
In both constitutions, the legislature was the dominant branch of government,
and the executive wielded very little power. Inhabitants of the colonies were
also accorded signi¬cant liberties, such as liberty of conscience, universal man-
hood suffrage in New Jersey, suffrage for all freeholders in Pennsylvania, and
trial by jury. Neither of these constitutions was successful. The Concessions
failed, and the “Fundamentall Constitutions” was never implemented. As we
shall see presently, Quaker theory and practice were not always in harmony.
The laws were made binding through collective discernment, agreement by
consensus, and submission by consent. “The collective body of people agreed
to” the “Fundamental points of English-Law Doctrine,” and this was “the most
solid Basis, [on which] our secondary Legislative Power, as well as our Exec-
utive is built.”77 The points of fundamental law to which the people agreed
in the Quaker colonies were much the same as any Whig™s, but with subtle
and signi¬cant differences. “We are a Free People by the Creation of God,”
said Penn.78 In treatises and constitutions, he outlined the fundamental laws
ordained by God. The most important were the right to property, the vote and
a share in the judiciary powers for the people, and liberty of conscience.79 The
¬rst and the last of these are related in a way that demonstrates the religious
priorities of Quakers.
Protection of property was basic for all Whigs, but for Quakers, as for other
religious groups such as Puritans, it was used not as a means to worldly status
or creature comforts but as a way to express faith in and obedience to God.80
As Frederick Tolles has shown, for the Quakers, earning more money allowed
them to do more of God™s work “ charity was one of the primary reasons both
the ecclesiastical and civil governments were established. But with plainness
and simplicity in attire and worldly possessions, Quakers did not, as Puritans,
see material wealth as a sign of spiritual status; it was to raise other members
of the community both in- and outside their Society by meeting their basic
material needs.81 One cannot ¬nd God, they knew, if one were distracted by
lack of basic necessities such as food, shelter, and education. Thus when the civil
government persecuted Quakers by ¬ning them and con¬scating their goods,
it was interfering with their religious duty to God and man. Civil punishments
for religious expression were, according to Penn, the “enemy of Grace.”82
Thus government was established so that man could “enjoy Property with

77 Penn, Great Case, 29.
78 Penn, England™s Present Interest Discovered, 32.
79 For a discussion of Penn™s views on these fundamental laws see Winthrop Hudson, “William
Penn™s English Liberties: Tract for Several Times,” WMQ 3rd ser., vol. 26, no. 4 (1969), 578“85.
80 Max Weber, The Protestant Ethic and the Spirit of Capitalism (New York: Charles Scribner™s
Sons, 1958).
81 This, of course, was the ideal. Tolles mentioned how many Quakers fell away from this ideal in
the midst of their prosperity in eighteenth-century Pennsylvania (Meeting House and Counting
House, 140“43).
82 Penn, England™s Present Interest Discovered, 3“4.
Quaker Theory of a Civil Government 83

Conscience that promoted it.”83 This understanding of the purpose of property
made Quakers exemplars of the so-called Protestant work ethic, which in
turn caused their ideas of property to evolve in advance of their non-Quaker
counterparts. While relationship of land-ownership to civil liberty was still
under debate in England,84 Quakers were establishing what would become
the most powerful colony economically and themselves as one of the most
in¬‚uential political groups through trade.
In sum, Quaker political obligation rested on three related features of their
political thought “ ¬rst, that the constitution and the government it created
were sacred and perpetual; second, that a process of popular participation was
ordained by God to determine the laws of the polity; and third, that the polity
should maintain a basis of unity. These features provided a basis for a theory
of constitutional change and legitimate civil dissent.

A Theory of Constitutional Change
Of all the peculiarities of the Quakers™ political thought, their idea of constitu-
tional change distinguished them most visibly from their contemporaries. The
recognition of governmental corruption, the dangers of an unlimited govern-
ment, and the risks of legal innovation were the cornerstone of both Quaker
and Whig thinking. For Whigs, what to do about them was a perennial prob-
lem. Whigs, regardless of whether they adhered to the ancient conception of a
constitution or a “modern” understanding, had no satisfying solution or func-
tional process for how to change government. The problem was the common
law itself.85
83 Ibid., 32.
84 Pocock, “Radical Criticisms,” 38.
85 The following discussion of the aspects of the ancient constitution and constitutional change
draws on several sources. See J. G. A. Pocock, The Ancient Constitution and the Feudal Law:
A Study of English Historical Thought in the Seventeenth Century (Cambridge: Cambridge
University Press, 1957). Working mainly with the thought of Coke, Pocock considers the
common law a “paradox” “ as something common lawyers perceived as immemorial, that is,
immutable, but always changing. In a 1987 reissue of his work, Pocock undertakes to clarify
misinterpretations of his argument. Here he maintains that it was not the law itself that was
immemorial but rather the juridical process. “[T]he notion of re¬nement and reform,” he says,
“was inherent in common-law ways of thinking.” Glenn Burgess, seeking to explain the “Janus-
faced” (Pocock, 275) quality of the common-law mind “ in being able, without contradiction,
to believe in stasis and change simultaneously “ expands Pocock™s analysis beyond Coke to
highlight the singularity of Coke™s thinking in this regard. He posits that most common lawyers
believed the ancient constitution to be ever-changing and changeable, but that they advised
against “innovation” (Burgess, The Politics of the Ancient Constitution, 55). In Common Law
& 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
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
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

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