American Legal History

The Quaker Effect

How the Quakers helped shape the American Legal System.

The Religious Society of Friends, also known as the "Quakers", is a sect of Christianity dating back to the mid 1600's. Thanks to George Fox, the commonly attributed founder of the RSOF, the Quakers arose in England in the 1650's as part of the nonconformist movement protesting the established church. Quakers believe in a personal connection with God, and dismiss the need of intermediary clergy. (Although there are currently many sects within the RSOF, I refer to the Quakers as a singular unit since we are discussing the movements origins.)

The Quaker nickname originated from the personal connection each individual made with God. The finding of one's inner light was commonly manifested by physical shaking or “quaking”, and observers of this phenomenon quickly adopted the term Quaker to refer to members of the RSOF. In addition to repudiating the need for spiritual intermediaries, the Quakers emphasize equality before the Lord, pacifism, and many other tenets they considered lost in the established church of the mid 1600's.

The usual starting point for discussions of the Quakers' story in the United States is the establishment of Pennsylvania as a Quaker state in 1681 under the sole proprietorshipp of William Penn.[1] However, a more proper introduction, at least for our purposes, begins with the severe persecution Quakers experienced in England. This persecution, and the Quakers' reaction, founded the Quakers' shaping of the American Legal System.

English Persecution of Religious Dissenters

With the established church as a central element of national identity, the English monarchy of the 17th century was extremely concerned with the rise of dissenting sects and the strengthening of the nonconformist movement. In an attempt to retain control and assert the dominance of the Anglican Church, Charles II implemented a reign of religious persecution upon all nonconformists. In discussing the Quakers' persecution, the most relevant parliamentary acts were the Quaker Act of 1662 and the Conventicle Act of 1664.

The Quaker Act of 1662 made it illegal to refuse to take the Oath of Allegiance, an oath swearing loyalty to king and country, and illegal to participate in any religious meetings outside of the established church. These prohibitions intentionally ran afoul of the Quakers' doctrinal beliefs. Quakers steadfastly refused to take oaths in any context, and because of their beliefs in the personal connection with God, staunchly opposed the religious proceedings of the Anglican church (in fact if Quakers were to attend church, they would only appear to molest the clergy during their sermons).[2]

The Conventicle Act of 1664 was even more restrictive, but focused on all nonconformists, not just the Quakers. The Act was part of a program by Edward Hyde, 1st Earl of Clarendon, aimed at discouraging participation in any church but that of England. Hyde's program was an extension of the Quaker Act. It made it illegal to have any religious meetings of more than five people outside the Church of England, illegal to miss Sunday church, and illegal to refuse to swear an oath to the King of England.

While this religious persecution applied to all nonconformists, the Quakers were especially susceptible. Their devout observance of their beliefs led to open defiance of these laws and resulted in many interactions with local law enforcement. In addition to their many transgressions of the law, Quakers were subject to more brutal and frequent persecution because their pacifism and refusal to fight back made Quakers extremely easy targets for abuse.[3]

These frequent encounters with the law were a necessary antecedent to the Quakers' substantial influence on future legal proceedings. Quakers were thrown in jail, beaten, fined, relieved of their property, and charged with treason, but no matter how brutal the punishment threatened or enforced, Quakers remained faithful. Their continual open defiance of the law, and their eventual defense against the laws they thought unjust set some of the founding precedents for today's American Legal System.

Substantial contributions to the American Legal System:

The end of attaintment

In what has become famously known as the Bushell's case, we can find the end of an oppressive legal tradition (writs of attaint), and the beginning of a pillar of the American judicial tradition (jury nullification). Before delving into the story, we need to define these two concepts. A writ of attaint would be issued by a judge upon the belief that the jury provided an erroneous verdict. The writ allowed for punishment or imprisonment if the jury did not return with the “correct” verdict. Jury nullification, on the other hand, is the ability of a jury to essentially negate a law by choosing not to enforce it. There is very little, if any, room for jury nullification in a world of writs of attaint, and it is therefore not surprising that the end of one brought about the other.

The story that laid the stage for this change began with William Penn and his fellow Quaker William Mead. In 1670, these two men were holding a Quaker meeting on the streets of , were arrested, and were tried at the Old Bailey under the Conventicle Act for causing a tumultuous assembly. At the conclusion of the trial, the judge instructed the jury of the law they were to enforce (namely the Conventicle Act). Although Penn and Mead had broken the law, the jury challenged the Conventicle Act by finding the defendants not guilty. This enraged the judge at which point he issued a writ of attaint and mandated the jury return to deliberations until they returned with an acceptable verdict (i.e. guilty). The jury once again returned with a verdict of not guilty, and the judge subsequently fined the jury.

One juror, Edward Bushel (N.B. his name is actually spelled Bushel and not “Bushell” as in the official transcript of his case), refused to pay the fine. When the judge ordered Bushel's imprisonment, Bushel challenged the order. The ensuing trial and ruling was the de facto end of writs of attaint. No longer could judges punish juries for their decisions. As juries could now decide cases without the fear of punishment, jury nullification became a feasible solution to unjust laws. Where a jury believes a law unjust, inequitable, or just wrong, it is able to choose not to enforce it. As in the case of Penn and Mead, although they obviously violated the Conventicle Act by holding a religious meeting not affiliated with the Church of England in the streets, they were not punished for it because a jury of their peers viewed the law as inequitable.

The Meeting for Sufferings as a model for modern legal defense organizations

Perhaps more important than the demise of the writ of attaint, was the Quakers' organization of a legal defense system. As previously discussed, the frequent transgressions of the religious laws of England resulted in many court appearances for the Quakers. The Quakers felt the sufferings they endured at the hands of law, police, judges and prison keepers were unjust. They decided to make a list of all these sufferings and created a committee to keep a centralized compilation of all their complaints, aptly named “The Meeting for Sufferings.”[4]

From the origination of the Meeting as simply a record keeping device, the Meeting became an obvious resource to provide legal assistance for Quakers, and continues to be such today. The Meeting took the vast amount of data from the common court appearances of the Quakers and began to sort out the common issues in the trials of Quakers.[5] The Meeting then separated the successful and unsuccessful handling of these issues and provided standing counsel to Quakers facing legal persecution.[6] The council advises Quakers as to whether they should appeal, how they should proceed, and their likelihood of success. Besides being a standing legal counsel for Quakers all over, the Meeting also functions as an invaluable legal research resource. As well as documenting the past sufferings, the group collects and distributes useful court opinions and rulings pertaining to the specific needs of Quaker defendants.[7] This structure of compiling all relevant and useful information for a specific class of individuals and providing legal counsel to those individuals is the model from which all modern legal defense groups were born.

This legal defense structure was not only the first of its kind, but also extremely successful. The Meeting was responsible for some invaluable, for Quakers and other defendants alike, victories against the crown that were incorporated into the American Legal System. Two of these notable triumphs were the documentation of all laws and the specification of indictments.[8] The first of these gains allows defendants to avoid breaking unknown laws, but more importantly allows for an effective defense against their charges. The second of these accomplishments minimizes the unfair bias of overly broad indictments. As George Fox stated in a complaint to Parliament in 1661, nothing should be in the indictment “more then[sic] the thing is.”[9] Thus, a defendant can only be convicted if all elements of the indictment are proved. Both the articulation of the laws and the charges provide for a more just justice system.

More tolerant laws and penal system established in Pennsylvania --

One final marked element of the American Legal System contributed by the Quakers comes from their implementation of judicial system. Pennsylvania was the first colony to establish unhindered religious tolerance (with freedom of religious practice a pillar of the Pennsylvanian Constitution) and an explicit guarantee for trials by juries.[10] Each of these were undoubtedly reactions to the legal encounters of Quakers in England, and are bedrock principles of today's American Legal System. In addition to these Constitutional guarantees, the Quakers provided a different ideology for their penal system. The Pennsylvanian penal system was in large part established to reform criminals rather than punish them.[11] No penal system is ever truly rid of the punitive component, but the elements of reformation in America's prison system are thanks in large part to the Quakers and their colonization of Pennsylvania.

[1] Fisher, S. The Quaker Colonies: A Chronicle of the Proprietors of the Delaware. Yale University Press: New Haven, Connecticut. 1921. p. 10.

[2] Horle, C. The Quakers and the English Legal System 1660-1688. University of Pennsylvania Press: Philadelphia, Pennsylvania. 1988. pp. 45-50.

[3] Horle, pp. 126-127.

[4] Horle, p. 173.

[5] Horle, p. 162.

[6] Horle, pp. 162-188.

[7] Horle, pp. 199-200.

[8] Horle, pp. 166-167.

[9] Horle, p. 167.

[10] Nash, G. Quakers and Politics: Pennsylvania, 1681-1726. Princeton University Press: Princeton, New Jersey. 1968. pp. 31-34.

[11] Fisher, pp. 14-15.

Further Reading

The Political Writings of William Penn

The Letters of George Fox

George Fox's 59 Particulars to Parliament

The Journal of John Woolman

Collection of more Quaker writings

-- MattDavisRatner - 11 Nov 2009



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