Arbitration in early America

Early modern people believed that disputes should be solved in private. Litigation made details of individuals’ personal and business lives public, causing severe reputational harm. Its confrontational nature could rupture community and family ties and was therefore best avoided. Arbitration proved the most popular alternative.Footnote ¹⁵ From the late Middle Ages onward, European public courts, as well as the legal fori of smaller corporations like towns and guilds began to formally arbitrate disputes between their members. This was considered more circumspect and less dangerous to the dispute parties’ reputations. It was also more private than public litigation.Footnote ¹⁶ Derek Roebuck's monumental study of English Arbitration has shown state and local authorities to have appointed arbitrators to solve seemingly any and all types of disputes.Footnote ¹⁷ For New England, scholars have located the formalization of arbitration in the period 1680–1720. Bruce Mann, David Konig, and William Nelson attributed this transformation to a number of deep-reaching social changes: first, increased immigration meant that the population became larger, denser, and more religiously and ethnically diverse. The new arrivals did not attend the same religious meetings and created separate sub-cultures. The colonies’ original, community-based institutions for dispute resolution proved unable to exert control over newcomers and consequently lost their power. Second, commercialization, based on expanding credit networks, created a demand for new forms of contract enforcement.Footnote ¹⁸ Arbitration continued to be important. However, it now became increasingly attached to the colonial courts and by the end of the eighteenth century, commercial arbitration depended fundamentally on public authority.Footnote ¹⁹ It is important to note, however, that research on the centralization of dispute resolution toward the public courts has relied almost entirely on records of said courts. The picture that has emerged therefore tells us little about the work and contribution of other corporate and quasi-corporate actors. It appears that somewhere along the way, alternative providers of law and debt enforcement in colonial America became marginalized, but we know little about how this played out beyond the court houses’ walls.

We do know that before the courts, religious legal fori offered some forms of dispute resolution. Konig and Haskins noted that Puritan congregations in New England formally arbitrated disputes between their members. However, they found the available sources too limited for an in-depth analysis of these legal fori's procedures and functions within the wider context of colonial legal institutions.Footnote ²⁰ More recently, scholarship has shifted away from New England and toward the mid-Atlantic colonies where sources are more abundant. These were home to another Protestant diaspora whose institutions shaped early America: the Quakers.Footnote ²¹ Friends had formal written rules which extended beyond immediate religious concerns to regulate various aspects of daily life, within the community and with outsiders, extending from how to dress to the conduct of business.

Friends placed much emphasis on solving disputes through arbitration. Morten Horwitz famously argued that this preference had a long-lasting impact on Pennsylvania legal culture.Footnote ²² Important articles by Carli Conklin and Peter Philips have explored the procedures Quaker meetings in the Jerseys and New York employed to solve disputes, and William Offutt has provided a quantitative analysis of litigation and arbitration in the Delaware Valley up to 1705, which includes Quaker dispute resolution.Footnote ²³ Jack Marietta's seminal study of Pennsylvania Quaker meetings included arbitration as part of Quaker disciplinary procedures. However, a more recent, tans-Atlantic study by Esther Sahle argued that monthly meetings’ dispute resolution procedures presented a separate practice.Footnote ²⁴ She found that Quaker disciplinary measures and monthly meetings’ dispute resolution procedures constituted two distinct practices: Quaker discipline books from the early eighteenth century onward discuss both arbitration and disownments, separately, and each under its own heading. One important distinction between the two procedures was how each started: disciplinary proceedings arose from meetings’ initiatives. If an elder learned of a community member's suspected transgressions, the meeting started an investigation. This did not require a direct complaint or accusation from another community member. Instead, the meeting acted to defend what it perceived to be the interest of the community as a whole. If the culprit refused to cooperate with the meeting and amend their ways, they would be disowned.Footnote ²⁵

Arbitration, on the other hand, required at least one conflict party to request the meeting's assistance in a specific conflict with one or more other, named members of the community. The meeting only arbitrated conflicts if the parties requested its help, never of its own accord. The process depended entirely on the conflict parties’ cooperation. On occasion, meetings employed disownments to enforce arbitration awards.Footnote ²⁶ In this way the two activities could become connected.

While these studies have begun to shed light on an otherwise neglected area of American legal history, important questions remain: we lack a clear understanding of the actual scope of formal arbitration by Quaker meetings. More importantly, none of the work on Quaker dispute resolution has connected this with developments in arbitration and legal centralization in the wider Atlantic world. Rather, Quaker arbitration is taken to have been an exceptional phenomenon, rooted in particular Quaker beliefs, and specific to that religion. Perhaps as a consequence of this assumption, the practice is often treated as static, leaving no room for possible changes in frequency and outcomes over time.

In contrast to these assumptions, this paper argues that Quaker arbitration was not distinct, but integral—and typical—of arbitration procedures found in legal fori across the early British Atlantic world. It evolved over the course of the colonial period and eventually declined in response to broader social, economic, and political developments. This new chronology explains why this once vital channel for dispute resolution was no longer available to offer an alternative to colonial courts after the stamp tax.

The Quakers

The Quakers, or Friends, are a Protestant dissenting sect that emerged from the English Civil Wars of the 1640s. During their early years they rallied against the religious and political establishment: they emphasized the importance of spiritual experience over scripture as well as believers’ direct communication with God.Footnote ²⁷ With other dissenting communities Friends shared a rejection of oaths as well as formal forms of address, preferring the use of “thee” and “thou” over “you,” and replacing pagan names of days and months with numbers. What set them apart from other dissenters was their sophisticated, formal organization.Footnote ²⁸ Closely resembling formal corporations, this consisted of a hierarchy of meetings and committees. Each layer of meetings dispatched representatives to the next level, creating a highly participative church government. Quaker meetings on all levels either included both women and men, or held parallel gatherings for both sexes, each with the power to make decisions for the community. While gender inclusive, Africans and indigenous Americans were not admitted to membership. The meetings took care of Friends’ buildings and cemeteries, they distributed poor relief, solemnized marriages, maintained correspondence with sister meetings both locally and across the Atlantic, and engaged in diplomacy with the state in order to defend and serve their members’ interests.Footnote ²⁹ The latter was important as Friends suffered persecution during the seventeenth century, and again from the Seven Years’ War onward.Footnote ³⁰

Quaker missionaries appeared in America from the 1650s and the community expanded greatly from the 1670s.Footnote ³¹ In 1681 William Penn obtained a charter to found Pennsylvania on land inhabited by the Lenape. Formal colonization began the following year. The colony's governing institutions, such as the Assembly and the colonial courts, were distinct from those of the Society of Friends.Footnote ³² However, a Friend himself, Penn envisioned the colony as a homeland for Quakers. On the one hand, this desire was driven by idealism, faith, and the quest for financial gain.Footnote ³³ On the other, it was a practical matter as Quakers suffered persecution in England and sought a place of greater safety.

From the beginning of the colonial period, Pennsylvania had four types of public courts: the county courts sat four times a year, alternatively as quarter sessions and common pleas. The former heard criminal cases, the latter civil disputes. An orphan court oversaw wills and estates. Finally, the provincial court decided the most serious criminal cases and heard appeals from all lower courts. The same judges presided over all these courts, many of them Friends.Footnote ³⁴

Quakers were a major part of the English legal reform movement and this heritage strongly influenced Pennsylvania's legal system. The Quaker colony abolished executions, except for premediated murder, and limited corporal punishment. Doubtless due to Friends’ experience of persecution in England, the Quaker legislators aimed to make fines more bearable. Goods essential to one's livelihood could not be seized. Terms of imprisonment for debt were limited and prisoners did not have to pay for room and board.Footnote ³⁵

The province's legislators also wanted to make the law easily accessible. They decreed that court fees were to be moderate, and set strict timetables for processing. They simplified and streamlined procedures, and mandated that all court business was to be transacted in English—reflecting their understanding that the law was intended primarily for English colonists.Footnote ³⁶ Importantly, they also strengthened options for out-of-court dispute resolution.Footnote ³⁷ Justices of the Peace could settle debt cases up to forty shillings. Certain cases should be moved out of court to be solved through arbitration.Footnote ³⁸ This may have given further legitimacy to Friends’ own legal fori: the monthly meetings.Footnote ³⁹

Quaker meetings as arbitration courts

Quakerism shared the early modern ideal of resolving disputes within the community to avoid litigation. To support Friends in this endeavor, the Philadelphia Quaker monthly meeting (MMFP) regularly acted as an arbitration court.Footnote ⁴⁰ Founded in 1682, in 1772 MMFP split into three meetings to accommodate the growing size of the community. The minutes of all three meetings survive for the entire colonial period, however for the sake of simplicity, this study ends in 1772. The minutes grew more extensive over time. During the seventeenth century, they often comprised one page per month or less. By 1800 five to six pages per month were the norm. To explain its activities, I furthermore draw on Pennsylvania Yearly Meeting's 1719 Book of Discipline.Footnote ⁴¹ This set out the rules the community expected Friends to live by. While not Philadelphia's first Quaker Discipline, the 1719 version is the first to include a detailed section on arbitration.Footnote ⁴²

The sources reveal three core elements of the Quaker courts’ functioning: first, its procedure for dispute resolution, second, the types of cases it handled, and third, how it enforced its arbitration awards. The following section discusses each of these in turn. Contextualizing them within the history of arbitration, it demonstrates that the Quaker court was typical of contemporary legal fori. As such, its evolution may inform our understanding of legal development in the Atlantic beyond Quakerism.

Across the British Atlantic world, arbitration constituted the most common form of dispute resolution. It aimed not only to solve disputes, but re-establish community harmony after a conflict. A wide range of legal fori, from crown and ecclesiastical to manor and guild courts all followed the same procedure.Footnote ⁴³ This was adopted from the New Testament, Matt. 18:15–17 and involved the following steps:

Conflict parties were first to try and solve their differences privately. If unable to reach an agreement, the aggrieved parties were each to recruit a team of trustworthy representatives to negotiate on their behalf and come to an agreement. Both parties promised to honor the representatives’ verdict. If these arbitrators failed to reach an agreement, or if one party refused to adhere by their decision, they could approach their community's legal forum. The legal forum, either independently or in dialogue with the parties, appointed another set of arbitrators who together would make inquiries, uncover evidence, and discuss the conflict. The arbitrators reported back to the legal forum regularly on their progress. Once an agreement had been reached, the legal forum would announce this publicly at a community function, for instance a church service or guild gathering. The publicity of the announcement and involvement of several community members would serve to pressure the conflict parties into honoring the arbitration award. Familiar with the procedure from other contexts, Friends adopted it for their community, and called it “Gospel Order.” The Quaker courts sat at predetermined dates and places—the monthly meeting's regular gatherings in the meeting house. Procedures were overseen by the meetings’ elders, or officers, in the presence of the community, thus resembling those of other legal fori across the Atlantic.Footnote ⁴⁴

The Quaker court resembled other legal fori not only in terms of the procedure it followed, but also in the sort of disputes it arbitrated. Philadelphia Yearly Meeting's 1719 Book of Discipline defined the types of conflicts that might be brought to meetings’ attention. These included “differences [that] happen or arise between any Friends” in “their interests, claims or properties in worldly affairs.” It specified debts, bonds, and “differences in accounts.”Footnote ⁴⁵ In other words, the meeting's arbitration procedure was not intended for religious conflicts, but specifically for disputes of a secular, even financial nature: it was intended for disputes over contracts.

What is more, the types of disputes Friends brought before the Quaker meeting were identical to those negotiated before Philadelphia's equity courts. During the period 1682–1772, Philadelphia monthly meeting arbitrated 284 disputes. The meeting minutes specify the causes for 161 (56%) of these. The remainder concern undefined “differences.” The causes which were specified appear random. I divided the known causes into categories according to issues that appeared most frequently. The largest category was “debt,” constituting 79% of known causes. They include both debts disputed between two or more individuals (58%), as well as claims on the estates of deceased Friends (22%). Philadelphia county court's records survive for just one year during the early colonial period, 1695/96.Footnote ⁴⁶ During this year, the court held equity powers. As in the Quaker meeting, the largest category of cases, 79%, concerned debts. Disputes between living parties constituted 69%, and disputes surrounding deceased persons’ estates 11%. In other words, both legal fori dealt with the exact same types of cases. The Quaker meeting acted as an equity court.Footnote ⁴⁷

In line with an equity court's focus on contract and commercial cases, a closer look at the Philadelphia Quaker court's debt cases reveals that they often concerned trade. They include conflicts over bills of exchange, differences in accounts, and money lent on bond.Footnote ⁴⁸ The conflict parties resided in Philadelphia, in other colonies or in England. Parties based abroad acted through attorneys, who represented their interests in the meeting. The minutes often do not specify a person's location. While MMFP arbitrated his complaint, merchant Francis Richardson actually resided in New York. This is not obvious from the minutes, and is only revealed by his correspondence.Footnote ⁴⁹ Fifteen cases (16.3%) could safely be identified as involving at least one party living in a different colony or in England.Footnote ⁵⁰ For instance, in 1687, Daniel Wharley, Quaker and hatter of London needed help with a bill of exchange he received from Philadelphia Quaker merchant Griffith Jones. Instead of taking the case to court, Wharley asked his correspondent in Philadelphia, Samuel Carpenter for support. Carpenter approached Jones but could not convince him to compensate Wharley for the protested bill. As a next step, Carpenter turned to the monthly meeting. He reported Jones “for not satisfying this Bill of Exchange to him on the behalf of Daniel Wharley with charge of protest and interests since it became due.” He requested the meeting exert pressure on Jones. The meeting directed that:

The “lawful damage and protest,” a penalty payment, and the interest rate of six per cent were standard procedure in Pennsylvania at the time. The Philadelphia Quaker meeting enforced commercial contracts, following procedures and commercial standards that were common across the British Atlantic world.

In order to enforce its arbitration awards, Philadelphia Quaker monthly meeting employed the same mechanisms and instruments as many other legal fori across the British Atlantic. As Marc Galanter famously observed, a court's power depends on its ability to diffuse information.Footnote ⁵² By doing so it signals norms for interaction and dispute resolution outside the court. Moreover, communication helped to enforce courts’ verdicts. This was crucial for early modern legal fori. While in principle, public courts were able to fine, physically punish, or incarcerate offenders, in practice, early modern states’ limited capacity restricted their ability to do so. Instead, public courts frequently relied on informal, communication-based instruments. The legal fori of other corporations and voluntary organizations relied entirely on these. They publicized information about cases and culprits. Community pressure then served to ensure dispute parties honored courts’ verdicts and adjusted their behavior.Footnote ⁵³

The literature offers some vivid descriptions of how this could play out in different early modern settings: A.G. Roeber observed how in seventeenth-century Virginia, court days were “public spectacles.” A court house's “porch was usually occupied by servants, slaves, and smallholders, who milled about, hawked wares, quarrelled, or listened to the proceedings inside.”Footnote ⁵⁴ All proceedings were open to the public as well as recorded. Court houses were typically found at central locations and easy to reach.Footnote ⁵⁵ Margo Todd described how in early modern Scotland the announcement of arbitration awards was followed by community banquets. They relied on the publicity “to ensure that the settlement would be kept, since violating an agreement witnessed by the whole neighbourhood would bring charges of duplicity and undermine reputation.”Footnote ⁵⁶

A reputation-based enforcement tool popular with colonial courts was public shaming. In seventeenth-century Maryland, those convicted of slander had to apologize publicly to the person they had slandered and withdraw their accusations.Footnote ⁵⁷ Pennsylvanian courts published the names of defendants found guilty of fraud.Footnote ⁵⁸ Massachusetts Puritans barred members found to have broken community rules from receiving communion. They were singled out during church service and forced to remain in their seats while the rest of the congregation stepped forward to receive bread and wine.Footnote ⁵⁹

The Philadelphia Quaker meeting used similar reputation-based enforcement tools in various contexts. It “disowned” Friends who transgressed rules set out in the Discipline. Quaker disownments have received much attention from historians. However, both their reliance on reputation and relationship to meetings’ arbitration has often been misunderstood. Traditionally, historians assumed a Quaker disownment to have constituted an ostracism which cut a Friend off from the community, with severe personal and financial consequences for the individual.Footnote ⁶⁰ Recent work by Sahle however, shows that in fact, seventeenth- and eighteenth-century Quaker disownments were of a different nature. If a Quaker meeting found a Friend in breach of the discipline, such as refusing to engage in its arbitration procedures or honor its verdicts, the meeting might draw up a “testimony of denial” against her or him. These were letters that listed a culprit's “crimes.” They would be read out loud at Quaker meetings within a region. Sometimes copies were distributed in the offender's neighborhood. While harmful to the individual's reputation, this did not amount to an ejection from the community. Disowned Friends continued to attend meetings for worship, socialize, and trade with other Quakers. They were prohibited from getting married in a Quaker meeting or receiving poor relief. However, by demonstrating repentance, they could apply for formal re-entry at any time. Disownments’ force lay not in formal exclusion, but in the community pressure they generated through exercises of publicly shaming culprits. Rather than an ostracism in the sociological sense of the word, Quaker disownments constituted a reputation-based tool of governance, akin to those employed by legal fori across the British Atlantic world.Footnote ⁶¹

Philadelphia monthly meeting issued threats of disownment nineteen times during the period under investigation. For example, in 1722, MMFP warned Samuel Hudson, who refused to cooperate with the meeting's arbitration process, “that he must be conformable to the rules & discipline of Friends or he cannot be held in community with them.”Footnote ⁶² In 1753, it informed “John Renshaw Senr & Junr & Thomas Renshaw” that if they continued to refuse to honor the meeting's ruling and “not pay or secure the debt” they owed fellow Friend Joshua Emlen, “the meeting will be under the necessity of testifying against them.”Footnote ⁶³ The threat seems to have worked, as the next month the meeting recorded that “The Friends appointed on Joshua Emlen's complaint say that the cause of it is removed by J. Renshaw & Sons having paid him their debts.”Footnote ⁶⁴

While frequently using the threat of disownment to pressure arbitration parties into compliance, the Quaker court carried this out only eight times. The first instance was in 1707, the last in 1760.Footnote ⁶⁵ Importantly, testimonies of denial usually listed more than one “crime.” Philadelphia Quaker meeting often found Friends who refused to submit to the meeting's procedures or verdicts also guilty of other failures. For instance, following a dispute between Ralph Loftus and Joseph Stretch about ownership of a house, the meeting disowned Ralph for “very disreputable” conduct and “neglecting to follow some employment for the maintenance of his family.”Footnote ⁶⁶ Similarly, it disowned Adam Rhodes in 1748 for “spending his time with idle company & of taking strong drink to excess, to the neglect of his business” as well as “not attending our Religious Meetings.”Footnote ⁶⁷ By adding moral failings to its testimonies of denial, the Quaker meeting increased the potential reputational damage it inflicted on those it disowned.

To sum up, Philadelphia's Quaker meeting followed the same procedure of arbitrating disputes as other contemporary legal fori. It negotiated the same types of disputes as Pennsylvania's colonial equity court. For enforcement, it relied on instruments targeting individuals’ reputation, which was also common practice across the Atlantic, and especially among colonial courts. In these three key features, procedure, case types, and enforcement mechanisms, the Quaker meeting did not differ from other contemporary legal fori. It should therefore be recognized as a community court. Doing so will help us better understand colonial American legal development.

How Philadelphia monthly meeting's case load developed over time

The literature on Quaker dispute resolution has assumed their meetings’ arbitration practice to have been rooted in specific Quaker beliefs. Based on this interpretation, scholars in turn assumed that the practice was constant, continuous, and unchanging over time.Footnote ⁶⁸ As the previous section showed, however, “gospel order” was not Quaker specific. It was a practice Friends were familiar with from other contexts and adapted to their needs. These may have varied depending on the environment they found themselves in at any one time. As the Quaker court formed part of the institutional fabric of colonial Philadelphia, it was likely also affected by colonial political, legal, social, and economic developments. This section therefore traces the Quaker court's activities over the long run and contextualizes it within broader colonial developments.

While an early success in many ways, Pennsylvania during its first four decades also suffered from a series of political and religious crises.Footnote ⁶⁹ Instability and insecurity directly impacted the colonial legal system. From about 1720, things changed. The political situation grew less volatile, institutions stabilized, trade expanded, and immigration increased. The Quaker court's case load was negatively correlated with these developments. The court was most popular with Friends during the colony's early period of instability. Of the total 284 disputes the meeting arbitrated across the colonial period, the vast majority fell into the years before 1720: 195 cases, about 69% of the total, with an average of about five cases per year.

It is important to remember that at the same time that Friends colonized North America, they still suffered persecution in Europe. Officially tolerated in 1689, they continued to face persecution well into the eighteenth century.Footnote ⁷⁰ Pennsylvania was supposed to be safe because Friends controlled its governing institutions. In England, public courts fined Friends, confiscated their property, and threw them in jail. In Pennsylvania, many of the men on the bench were themselves brethren. William Offutt's research on Delaware Valley courts suggests that early colonial Friends indeed frequently litigated against each other as well as outsiders, making heavy use of Pennsylvania's public courts.Footnote ⁷¹

Yet, as both Table 1 and Figure 1 show, Philadelphia Friends frequently resorted to their community court as well. They had good reasons to do so. First of all, Friends shared the contemporary ideal of solving disputes within the community. This will have guided many of them when choosing a legal forum. In addition, several political developments directly impacted the public courts’ functioning, providing a further incentive to turn to the Quaker court instead.Footnote ⁷² Some of these factors were the result of imperial interests, others had local roots.

Table 1.

References to “Liberty to go to Law” in the Philadelphia Quaker Meeting Minutes

Source: See text.

Figure 1.

Distribution of disputes in the Philadelphia Quaker court over time.

N = 284. Source: See text.

From the Glorious Revolution onward, the metropolitan government worked to increase control over the American provinces. John Murrin and others have argued that this led to an uniformization of law in the colonies, which became not only more akin to each other, but also increasingly conformed with English law.Footnote ⁷³ The new policies significantly interfered with Pennsylvania's legal system from 1705.Footnote ⁷⁴ Qua Penn's Charter, the metropolitan government had a right to veto all colonial legislation.Footnote ⁷⁵ As part of its attempts to gain greater control over the colonies it increasingly made use of this prerogative. For instance, in 1706 the Privy Council revoked 53 of 105 laws the Pennsylvania Assembly submitted.Footnote ⁷⁶ Indeed, Offutt found that among the American colonies, Pennsylvania suffered “the highest percentage of disallowed colonial legislation.” In between sending laws for approval to England and hearing back about their acceptance or rejection, rumors and uncertainty reigned. This led to general confusion over which laws were in place, and over colonial courts’ jurisdiction.Footnote ⁷⁷ Between 1705 and 1710 Pennsylvania's courts functioned merely based on ordinances issued by the governors, at times they did not sit at all.Footnote ⁷⁸

Local power struggles also impacted Pennsylvania's courts. Penn had envisioned the colony as a homeland for Friends, where they could live free from the persecution they continued to be exposed to at home. However, like all colonies, Pennsylvania needed financing. In order to fund his “holy experiment,” Penn recruited non-Quaker supporters as well. Successfully so: unlike some other North American colonies, Pennsylvania did not struggle with a shortage of willing settlers. The first Quaker colonizers disembarked on the banks of the Delaware in late 1682. For the next forty years, Philadelphia remained small. By 1690, the City of Brotherly Love counted roughly 2,000 European inhabitants.Footnote ⁷⁹ Just over half of them were Friends.Footnote ⁸⁰ A majority of the remaining Europeans were Anglicans. Soon, conflict erupted between the two religious groups over control of the colony. This was carried out in part through the court system. As part of their beliefs, Friends would not swear. Instead, they affirmed. During the 1690s, Anglicans tried to gain hold over the colony by attempting to make oaths mandatory throughout the public legal process. This “affirmation controversy” both threatened Friends’ access to the public courts and called into question any legal verdicts obtained without the use of oaths. The conflict repeatedly disrupted legal procedures.Footnote ⁸¹ A further religious dispute of the 1690s, the Keithian schism, saw different factions within the Society of Friends pitted against each other. Former Quaker minister George Keith published attacks against Friends in England, which “threatened to destabilize the Society's delicate legal position.”Footnote ⁸² The differences continued through the decade.

What was more, during the 1690s, William Penn was twice arrested under charges of treason, due to his close relationship with former King James II. Between 1692 and 1694 the colony came under crown control, as it failed to take measures to defend itself against the French in the War of the League of Augsburg.Footnote ⁸³ In 1708 Penn again was imprisoned, this time for unpaid debts. Close to bankruptcy, he prepared to sell Pennsylvania to the crown. These plans hung over the colony until Penn's death in 1718.

A final important point regarding Friends’ use of the public courts concerns trade. Among other things, Pennsylvania was also designed as a business opportunity, and a large number of Quaker merchants settled in Philadelphia and its surroundings.Footnote ⁸⁴ Philadelphians exported tobacco, skins, furs, lumber, and flour from its hinterland to the West Indies and bought English-manufactured goods via the New England colonies.Footnote ⁸⁵ Trade in this period functioned on the basis of credit. It required institutions to enforce contracts and ensure that trading partners settled commercial debts. Elsewhere, chancery or equity courts were instrumental in this.Footnote ⁸⁶ Unlike common law courts, they possessed procedural instruments that enabled them to better understand and determine commercial contracts. For example, in equity courts, plaintiffs were able to file cases against multiple parties, and others involved in the suit were able to add their own related claims. Equity courts relied on testimonies in writing, including that of the dispute parties, and generally included a broader range of evidence.Footnote ⁸⁷ Equity courts however also faced criticisms. As they operated without juries, some colonists worried they would be biased against locals and act in favor of proprietors’ interests. Nowhere was this controversy fought harder than in Pennsylvania. According to Stanley Katz, “Controversies over the nature of jurisdiction of equity courts was a distinguishing feature of early Pennsylvania political life.”Footnote ⁸⁸

Before 1720, Pennsylvania's county court possessed equity powers only intermittently. The colonial legislature repeatedly passed laws issuing the courts with equity powers, only for the crown to revoke them. Courts with equity powers were active in Pennsylvania briefly after 1684, again from 1690 to 1693, from 1701 to 1705, from 1710 to 1713, and from 1715 to 1719.Footnote ⁸⁹ This back and forth led to constant confusion over whether the courts held equity powers or not. Importantly, it also caused insecurity as to whether the verdicts obtained during these periods would in fact be enforced once the courts’ equity powers were revoked.Footnote ⁹⁰

The situation changed noticeably from around 1720.Footnote ⁹¹ Political turmoil subsided. Laws remained in place and the courts sat regularly. Even an equity court was introduced that year.Footnote ⁹² Trade with Europe as well as with other colonies grew almost threefold, as Philadelphia merchants exported more wheat and flour to feed growing populations and provision the troops of Europe's many conflicts.Footnote ⁹³ By the time of the Revolution, Philadelphia had emerged as North America's primary port, surpassing both Boston and New York. Demographic change accompanied commercial growth. Philadelphia's population increased dramatically. In 1720 less than 5,000 people lived in the city. By 1775 their number had grown to 32,000.Footnote ⁹⁴ As the colony became more politically stable and prosperous, the Quaker court began to decline. Only 89 cases fall into the period after 1720, making about 31% of the total and an average of only 1.7 cases per year. By the time the Seven Years War began, the Quaker meeting had all but shelved its dispute resolution activities.

Both the threats to and actual loss of control over its political and legal sovereignty to powers that continued to persecute them in England would have made Friends think twice about using Pennsylvania's public courts. In addition, limited equity powers on the one hand combined with insecurity regarding the reliability of verdicts obtained using affirmations on the other, endangered property rights. This limited the colonial courts’ ability to support trade, and Friends turned to their own legal forum for support enforcing contracts instead. Once the political situation stabilized and the public courts became more reliable, Friends were less dependent on their community court and may have turned elsewhere for support solving disputes. The next section discusses this possibility.

How the Quaker court related to the public courts

The Quaker court formed part of colonial Philadelphia's legal fabric. As discussed earlier, its case load declined just as religious and political conflict subsided and the public courts improved. It seems likely that the two developments were connected. To explore this possibility, we need to take a closer look at how the Quaker meeting fit into Philadelphia's wider legal structures.

The meeting minutes reflect how the relationship between the Quaker monthly meeting and the colonial courts evolved. During Pennsylvania's first decade, the 1680s, the two appear to have acted independently from each other: the Quaker minutes do not refer to the public courts as alternative forums for dispute resolution at all. From the 1690s, this began to change. The meeting now occasionally mentioned other courts in the context of dispute resolution procedures. The frequency of these references slowly increased. The previous section showed an overall decline in the meeting's case load from about 1720. A close reading of the meeting's minutes suggests that there was a qualitative component to this change as well: Friends grew increasingly skeptical of the meeting's arbitration procedure. From the early eighteenth-century onward, the colonial courts’ shadow loomed ever larger over the Quaker meeting. As time went by, Friends came to reject the meeting as a legal forum, increasingly expressing a preference for the public courts instead.

Formally, Quakerism prohibited Friends from litigating against each other. However, Quaker meetings before the mid-eighteenth century rarely policed members’ behavior.Footnote ⁹⁵ Philadelphia monthly meeting only intervened against public litigation if one conflict party explicitly requested this. Quite the opposite: in 1701, the Widow Moore complained against merchant Philip England for withholding money from her, “the County Court having ordered him to pay it.” In other words, she requested the meeting enforce a public court's verdict! The meeting responded by dispatching officers to speak to England and “press him to give the woman satisfaction.”Footnote ⁹⁶

Despite MMFP's apparent laxness regarding the prohibition of law suits, its minutes include requests for “liberty to go to law.” In other words, some Friends asked the meeting for permission to litigate a dispute in the public courts even though they had little reason to fear consequences for doing so without permission. Why did they take this extra step? I suggest that these requests were part of Friends’ dispute resolution strategies. When in 1723 merchant George Claypool asked “that he may be left to his liberty to sue.”Footnote ⁹⁷ Daniel Standish over a debt, or renown Quaker minister Thomas Story in 1706 “laid before this meeting that Richard Sutton is in his debt for money lent,”Footnote ⁹⁸ and “desires liberty to recover it by a due course of law,” they were not merely asking the meeting's permission to sue. Rather, filing such a request with the meeting served to signal to the opposing party that they were serious and ready to litigate. The move served to exert pressure on opponents to agree on a solution to the conflict.Footnote ⁹⁹ Early colonial Friends freely shopped around for the legal forum they thought most likely to support their interests. They were aware of the possibilities both the Quaker meeting and the public courts offered and evoked the public courts as part of their personal dispute resolution strategies. These reflect Friends’ perception of the usefulness—and effectiveness—of either legal forum.

David Konig suggested that an indicator of a court's effectiveness is how many of its cases resurface in other legal fori.Footnote ¹⁰⁰ If conflict parties move a dispute from one court to another, they likely expect a better outcome: the legal forum they first approached failed to deliver according to their expectations. It was not effective in solving the dispute or enforcing its verdict. For the early colonial period, the decades in which the Quaker court was most active, very few court records survive from Philadelphia. Unlike some other religious minorities, Quakers in this period did not have distinct names. The limited surviving court records contain no information that would allow us to identify Friends among the litigants. Nor are the records elaborate enough to allow us to pursue individual disputes through different legal fori or determine the numbers of Friends using the public courts at any one time. However, Friends’ requests for “liberty to go to law” and the meeting's responses to these may serve as indirect evidence for the changing relationship between Quaker meeting and public court. The following section sketches the development of references to “liberty to go to law” in the Philadelphia Quaker meeting's minutes over time.

As Table 1 shows, Philadelphia Quaker meeting minutes from the 1680s are free of requests for “liberty to go to law.” Possibly because Penn's “holy experiment” was still young, Friends were still idealistic enough to try to live as strictly as possible according to Quaker discipline. The meeting began to invoke the possibility of referring disputes between Friends to the colonial court around the turn of the eighteenth century. The first such case recorded was a dispute between merchant Arthur Cook and the widow Guest in 1698. Cook complained against Guest for allegedly owing him money. The meeting recorded that contrary to Cook's demands, “Alice Guest doth not think herself obliged to pay any debts due from her husband, when he was in partnership with Joseph Brown,” apparently because she saw “the said Joseph” as the responsible party. The meeting therefore left Cook “to his liberty to endeavour to recover it from whom it is due.”Footnote ¹⁰¹ While not specifying the use of courts in this instance, the meeting's use of the term “liberty” in a debt dispute strongly suggests that this is what they had in mind.

During the eighteenth century, the number of references to “liberty” increased steadily. In the period 1700–1709, 15% of disputes (six out of a total of forty cases) were processed by invoking the threat of public litigation. While the overall case numbers remained small, a clear trend toward an ever-greater reliance on the public courts emerges. In the 1710s the percentage of such cases climbed to almost a quarter of the total, by mid-century to over 40%. From the 1750s this development was reversed, however. At that time the overall number of cases also decreased dramatically to soon peter out entirely. This does not have to mean that the Quaker court became more effective at this time. Rather, I suggest, the disappearance of arbitration from the Philadelphia Quaker meeting's minutes reflects Friends’ abandonment of the court—they no longer approached the meeting first but likely went directly to the public courts.

If we look at the individual cases in detail, evidence of two developments emerges: first, a change in the relationship between the Quaker meeting and the public courts. Second, a change in Friends’ relationship to their community court. The following paragraphs discuss both phenomena in turn.

Into the early years of the eighteenth century, Philadelphia Quaker meeting issued threats of granting “liberty” only after first attempting to solve the dispute on its own. Only if it saw its efforts at risk of failing did it resort to threats. In 1709, for the first time, it changed its approach: when one James Kite complained that fellow Friend Emmanuel Walker refused to settle a debt, the meeting immediately ordered Walker “make the said James Kite satisfaction” or it “must leave him to his liberty to recover his right by due course of law.”Footnote ¹⁰² From this time onward, the meeting regularly issued threats of granting “liberty” immediately upon hearing of a dispute. The types of cases the meeting dealt with did not change in this period, suggesting that the disputes themselves did not provoke the meeting's new, harsher response. Rather, the meeting's new approach likely reflected a change in the two legal fori's relationship to each other as well as the Quaker court's relationship to its community. It suggests a decline in the Quaker court's effectiveness in solving disputes on its own. Aware of this, the meeting made use of its position of acting in the shadow of colonial law. It used the presence of the colonial courts as a means to pressure Friends into complying with its process and decisions. Having started out as an independent legal forum in the 1680s, from the 1720s onward the meeting increasingly resigned itself to a position as a subsidiary court.

The second development that emerges from the minutes is that Friends’ relationship to their community court also changed in the early eighteenth century. Over the years, the minutes show an increasing reluctance on the part of Friends to engage with the Quaker court's process. This reluctance played out in several ways. First, from the 1720s we see instances of Friends refusing to engage with the meeting's arbitration process outright. The first such incident occurred in 1721. That year, “the Friends appointed in the case of Joseph Richardson and the Executers of Samuel Richardson” reported that “Samuel Hudson, one of the Executors [is] refusing a submission.”Footnote ¹⁰³ In other words, Hudson would not agree to let the Quaker court arbitrate and solve the dispute. It dispatched a delegation of Friends to speak to Hudson. After several months of fruitless negotiations, they conceded failure. They reported that Hudson “appeared obstinate, and tho (sic) they desired him to be at this meeting, he is not here, but has sent in a paper, the purport thereof begin a clear refusal to submit to the rules and discipline of Friends.”Footnote ¹⁰⁴ In a similar manner, Isaac Bolton in the same year “had notice that the complaint would be brought to this meeting, and was desired to attend, and he accordingly appeared.” However, he “refuse[d] to leave it to the determination of Friends.” Instead, he expressed the preference that the plaintiff “might be left at liberty to obtain his right in a legal way.”Footnote ¹⁰⁵ In all these instances, Friends’ resistance left the Quaker court unable to conduct its arbitration procedures. Friends rejected their community court's method of settling disputes, sometimes specifically in favor of public litigation.

Initially, the Quaker meeting could use the threat of referring a case to public litigation as a tool to make Friends comply with its arbitration procedures and awards. Over time, this changed. The minutes show an increasing skepticism on the part of Friends to use “gospel order.” Instead, the evidence suggests, they leaned increasingly toward litigation. Left with no other option, the Quaker legal forum passed the cases on to the public courts.Footnote ¹⁰⁶

Those familiar with Quaker history will notice that the decline in Philadelphia monthly meeting's arbitration roughly coincides with an Atlantic-wide increase in Quaker meeting's disownments that were part of the Quaker reformation. In other words, monthly meetings doubled down on discipline during the same time as they ceased to arbitrate disputes. How do these two seemingly contradictory developments fit together?

The explanation lies in the procedural differences between disciplinary measures and arbitration. As discussed earlier, disownments followed an individual's refusal to comply with the meeting's orders. As Sahle's recent study of London and Philadelphia Quaker community-policing showed, many Friends resented the meetings’ increased policing of their communities that accompanied the Quaker reformation. They refused to submit to the new, stricter rules. This led to the dramatic increase in disownments observed from the 1750s.Footnote ¹⁰⁷

Arbitration procedures on the other hand depended on conflict parties themselves approaching the meeting for help. As shown in the previous section, Philadelphia Friends grew increasingly reluctant to comply with the meeting's arbitration procedures. They refused to follow the awards or even submit their disputes. This means that both, the decline in arbitration and the increase in disownments were symptoms of the same malady: Friends’ growing refusal to cooperate with their meetings.

Arbitration, demography, and commercialization

Scholarship on early modern empires contends that their governance was highly fractured. Multiple spheres of law coexisted and overlapped, acting with varying degrees of sovereignty and independence from the metropole. Over time, the legal pluralism of early empire declined and the state emerged as the dominant body politic. In British America, historians have argued, legal centralization emerged via a formalization of dispute resolution. Traditional arbitration became court-centered and litigation grew more prominent. Scholars including Bruce Mann, David Konig, and Deborah Rosen proposed that commercialization and demographic change drove both the formalization of arbitration and the centralization of dispute resolution in the hands of the state. This paper found strong evidence for this hypothesis at a much more detailed level than previous studies. While the lack of public court records precludes secure conclusions, the evidence from the meeting records suggests that in Philadelphia, as in other colonies, the increase of trade was accompanied by an increase in public debt litigation, and that this happened at the expense of the Quaker meeting.

What is more, the evidence from Philadelphia hints at a possible link between demographic and commercial change and the formalization of dispute resolution: consider the conflict over debts introduced at the beginning of this article. As John Reynell wrote to Elias Bland in the summer of 1760, William Griffitts had been arrested for debts upon the initiative of a fourth merchant, Isaac Levy. Levy does not appear in the Quaker meeting minutes. Given his name, he was likely Jewish. His involvement with Griffitts suggests that Philadelphia's Quaker merchants at this point were part of larger, trans-religious credit networks. As a non-Quaker, Levy had no access to the meeting's arbitration services. Nor was he subject to their disciplinary procedures. His relationship with Griffitts fell outside the meeting's jurisdiction. In order to secure his debts, Levy therefore turned to the state. Pennsylvania's public legal institutions superseded private, religious ones. In this context, relying exclusively on the meeting for contract enforcement put Friends at a disadvantage when competing with merchants from other communities. This incentivized Friends to call on state institutions instead for such conflicts.

The meeting's lack of jurisdiction over non-Friends does however not explain why Philadelphia Quakers stopped using their court for disputes with co-religionists. Given both the norm of solving disputes within the community and the rising cost of public litigation, this is surprising. To shed light on possible motives, let us return to our merchants’ dispute once more.

When Reynell informed Bland in his letter that his intervention came too late to secure Bland's debts, he lamented: “Thou hast been too tender of his reputation.”Footnote ¹⁰⁸ Bland had hesitated to publicize Griffitts’ payment difficulties as he expected this to harm his fellow merchant's reputation and credit. Quaker meeting minutes throughout the Atlantic world reflect their awareness of the danger reputational damage might hold for the individual. They are full of entries reminding Friends not to slander each other. What is more, Philadelphia monthly meeting's arbitration between Reynell, Bland, and Griffitts concerned not only the extent of Griffitts’ debts. Rather, the minutes reflect long discussions around what information to include in Griffitts’ condemnation. One element that Griffitts objected to vehemently and that was eventually dropped was the charge of indulging “himself in the use of spirituous liquors to excess.”Footnote ¹⁰⁹ Marking him as irresponsible and untrustworthy, this likely would have made it impossible for him to start over in business, even after the Assembly honored its efforts of settling his debts and set him free.

This episode links back to Galanter's point, that a legal forum's power lies in its ability to communicate information about its work to the public. Like the Scottish arbitration boards Margo Todd studied, the Quaker meeting relied entirely on community pressure to enforce its verdicts. Its functioning therefore depended on its ability to communicate information to a significant part of the city's inhabitants. This could only work within a relatively homogenous population. Only those who either personally attended the Quaker meeting, lived in their households, or were otherwise socially connected to Friends would learn of the meeting's proceedings.

Until about 1700, this would have worked very well, as Friends made up the majority of Philadelphia's population. After that, they slowly began to become outnumbered by followers of other religions. Around the same time, the meeting first began to invoke the public courts in its arbitration procedures. The decline in the meeting's case load from around 1720 coincided with a second, more monumental demographic shift, depicted in Figure 2: from the late 1710s onward, immigration to Philadelphia grew exponentially. The new immigrants were predominantly non-Quaker. As such, they would not have attended the Quaker meeting, and were probably less likely to be members of Quaker households. In addition, many of them were Germans who did not speak English.Footnote ¹¹⁰ The language barrier further diminished their chance of learning about disputes in the Quaker court. Together, these factors reduced the meeting's ability to publicly shame, and thereby pressure, dispute parties. This demographic explanation would also answer the question of why Friends did not revive their community court after the Stamp Act. Given the meeting's exclusive reliance on reputation-based enforcement tools, it no longer provided a viable alternative, even as colonists once again became weary of the public courts.

Figure 2.

Quaker arbitration and population change in Philadelphia.

Source for population numbers: Smith, Death and Life in a Colonial City.