USA > Maryland > Chronicles of colonial Maryland, with illustrations > Part 14
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The situation thus revealed shows how much use Balti- more was disposed to make of the power given him by his charter, the fourth section of which granted him "the patron- ages and advowsons" of all churches which should be built in the Province, "together with license and faculty of erecting and founding churches, chapels, and places of worship * and of causing the same to be dedicated and consecrated according to the ecclesiastical laws of our Kingdom of England".
Nor was there any church law save the "Toleration Act", the purport of which was only to guarantee religious liberty. The Province had made none, and the English ecclesiastical law never had a place in Maryland's church system.
In a word, then, there was in Maryland prior to the
1 Neill, p. 148. But then there were at this time three Protestant churches, one on Trinity (now Smith's) creek; Saint George's church, now Poplar Hill; and one on Saint Paul's creek, now Church Run, on Saint Clement's Manor. The first permanent minister, however, of the Church of Eng- land-Rev. William Wilkinson-did not arrive until 1650. Allen, "Who were the early settlers of Maryland;" "Day Star," p. 145.
2 Neill, p. 151.
3 Winsor, p. 547.
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Revolution of 1688, neither church nor church law worthy of consideration. But the events of 1688 in England had a direct and almost immediate effect upon the Maryland church, resulting, first, in the recognition of William and Mary ( 1692, chap. I), and, secondly, in the passage of the Act of 1692. chap. 2. (The different views taken of the causes and purpose of this latter Act do not now concern us, but the curious on the subject may consult with interest Browne's Maryland, pp. 185, 190 et seq; Doyle's English Colonies in America, first volume, pp. 319-320; Lodge's English Colonies in America, pp. 119 et seq; Davis' Day-Star, pp. 87 et seq; McMahon's Maryland, 237 et seq).
The Act of 1692, chapter 2, which may be said to mark the beginning of the second of the periods above indicated, is entitled "An act for the service of Almighty God and the establishment of the Protestant religion in this Province."
Bacon says of it: "This Act laid the first foundation for the establishment of the Protestant religion in this Province and contains many notable particulars relating to parochial rights obtained under it". He proceeds to give an abstract of its provisions, of which those material to our inquiry are as follows :
"(I). That the Church of England, within this Prov- ince, shall have and enjoy all her Rights, Liberties and Franchises as now is, or hereafter shall be, established by law : And, also, that the Great Charter of England be kept and observed in all Points.
"(3). The County Justices to meet, by Appointment, at their respective County Court-Houses, giving Notice to the principal Freeholders to attend them, * * * * and there, with the advice of the said principal Freeholders, lay our their several Counties into Parishes, to be entered upon record. * * *
"(4). The several Parishes being thus limited, the Free- holders of each parish to meet, by Appointment of the Justices of the County Courts, and make choice of six Vestrymen, who shall have a clerk to take Accounts, &c., and with the first
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Tobaccos, Wares, Goods, &c., by this Act, or any other Ways or Means whatsoever, given, granted, raised or allowed to the use of the Church or Ministry of the said Parish to which they belong, shall erect and build one Church, &c., in the Parish (such Parishes as have already Churches and Chapels built in them excepted). **
"(5). Forty per Poll, deducting 5 per Cent. for the Sheriff's salary, on all Taxables; which Tobacco so raised (after building a Church or Chapel within Each Parish) to be appropriated and applied by the Vestrymen, to the Use and Benefit of the Minister. But if no Minister be Inducted, then to be laid out for the necessary Reparation of the Churches, or other pious Uses, at the discretion of the Vestry.
"(6). The Vestry were impowered to take Possession of Any Bequests, Grants, &c., by any Persons piously inclined, * *
* and apply the same to the Use and Intent of the Donor or Donors.
"(7). The Vestries impowered to prosecute and main- tain any Actions whatsoever, real, personal or mixed, for the Recovery of all or any of the Premises aforesaid, from any Persons detaining any Goods or Chattels, Tenements or Here- ditaments given and granted, and otherwise appointed to the uses aforesaid, and for any Damages, Tresspasses, &c., as amply as a Body Politic, or Corporate, might or could do, for recovering and preserving the Premises aforesaid: The princi- pal Vestryman, with other of the Vestrymen, to be mentioned in the Writ and Declaration, and other Proceedings.
"(8). On Death or Removal of any Vestryman, the other Vestrymen, at their next Meeting, were impowered to chuse another in his Room, &c.""
An Act, entitled "An Additional Act to the Act for Religion", was passed October 18, 1694, and another, with
1 The Vestry acted for the State in the erection and care of church buildings, and as preservers of the peace within the limits of the church and church yard. Later, other functions were added, such as choosing of counters to prevent the excessive production of tobacco, the nomina- tion of inspectors of tobacco for the warehouses within their parishes, and of reporting persons liable to be taxed as bachelors. Vestrymen and church wardens were subject to a fine for refusing to act .- Church Life in Colonial Maryland.
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the same title, was passed May 22, 1695. Bacon gives none of the provisions of either of these Acts, stating that both were repealed by Act of 1696, chapter 18.
This Act of 1696, bears the same title as that of 1692, and purported to repeal the latter as well as the Act of 1695. The Act of 1694 is not mentioned, probably because it was, in terms, limited in its operation to the period of three years.
The King dissented to the Act of 1696, on November 30, 1699, assigning as a reason that "therein is a clause declaring all the laws of England to be in force in Maryland; which clause is of another nature than that which is set forth by the title in the said law".1
The objectional clause provided as follows :
"That the Church of England, within this Province, shall Enjoy all and Singular her Rights, Privileges and Freedoms, as it is now, or shall be, at any Time hereafter, established by Law in the Kingdom of England: And that his Majesty's Subjects of this Province shall enjoy all their Rights and Liberties, according to the Laws and Statutes of the Kingdom of England, in all Matters and Causes, where the Laws of this Province are Silent."
On the King's dissent to the Act of 1696, and within six months thereafter, namely, on May 9, 1700, another Act was passed, entitled, "An Act for the Service of Almighty God and Establishment of Religion in this Province according to the Church of England"." This Act was likewise disapproved by the King, and was returned, as Bacon says, "with amendments proposed which were accepted, and an Act, pursuant thereto, passed the 25th of March, 1702, whereby this Act was repealed".
The Act of 1702,3 is entitled "an Act for the establish- ment of religious worship in this Province, according to the Church of England, and for the Maintenance of Ministers". It is printed in full by Bacon, and contains twenty-two sections. Its material provisions are as follows :
1 Bacon.
2 1700, Chapter I.
3 Chapter I.
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"That the Book of Common Prayer and Administration of the Sacraments, with other Rites and Ceremonies of the Church, according to the use of the Church of England, the Psalter or Psalms of David, and Morning and Evening Prayer therein Contained, be solemnly read by all and every Minister or Reader in every Church which now is, or here- after shall be settled and established in this Province; and that all Congregations and Places of Public Worship, according to the Usage of the Church of England, within this Province, for the Maintenance of whose Ministers and the Persons officiating therein, any certain Income or Revenue is, or shall, by the Laws of this Province, be established and enjoined to be raised or paid, shall be deemed settled and established churches".1
"That a Tax or Assessment of Forty Pounds of Tobacco per Poll be yearly and every Year successively levied upon every taxable Person within each respective Parish, * * which said Assessment, of Forty Pounds of Tobacco per Poll, shall always be paid and allowed to the Minister of each respective Parish, having no other Benefice to officiate in, presented, inducted, or appointed by his Excellency the Gov- ernor or Commander in Chief, for the Time being.2
"That Marriages forbidden by the Table of Marriages of the Church of England be not performed, under penalty, and that no marriage be performed by a layman in any Parish where a Minister or Incumbent shall reside.3
"That the Sheriff shall collect the Forty per Poll and pay over the same to the Minister or Incumbent in each respective Parish.4
"And the better to promote the execution of the good Laws of this Province, so far as concerns the respective Parishes, and for the more easy Dispatch of Parish business, that there be select Vestries in each Parish of this Province, and that the several Vestrymen of the several Parishes within this Province, that now are, or hereafter shall be chosen by such select Vestry, of which Vestry the Number
1 Act, 1702, C. I, Section 2.
8 Ibid, Sections 4, 5.
2 Ibid, Section 3.
* Ibid, Section 6.
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shall always be six at least, except upon Death or Resignation, or other Discharge of any of them according to the Provision herein made to that Purpose; and in such Case of Death or Resignation, or other legal Discharge from serving, the remaining Part of such Vestries shall, with all Convenient Speed, summon and appoint a general Meeting of all the Inhabitants of the said Parish, who are Freeholders within the same Parish and contribute to the Public Taxes and Charges of the said Parish, who shall, by Majority of Voices, elect and choose one or more sober and discreet Person or Persons, Freeholders of each respective Parish, to supply such Vacancies.1 *
"That two new Vestrymen shall be annually chosen, in the Places of two others, who shall be left out; to which Purpose, all the Inhabitants of every Parish, being Freeholders within the same Parish, and contributing to the Public Taxes and Charges thereof, or such of them as shall think fit to attend, shall repair to their respective Parish Churches, every Year successively upon Easter Monday, and there, by their free choice, declare what two Persons shall be discharged from their being Vestrymen, and choose two others, qualified according to this present Act, in their Stead and Room; who taking the Oaths and performing all other Thing required by this present Act, or other Laws of this Province, for Vestrymen, shall be deemed and taken to be Members of the said Vestry, to all Intents and Purposes : Provided always, That in every Parish where any Minister or Incumbent is, or shall be lawfully, according to the Laws and Usages of this Province appointed and in Possession of any Living, invested with the Forty Pounds per Poll, and residing therein, he shall during the Continuance aforesaid, and no longer, be one of the Vestry of such Parish, and Principal of such Vestry, although there be the number of Six Persons, or more, besides".2
"That each Vestry shall appoint a Register to make due
1 Ibid, Section 7. The remainder of the section prescribes the ves- trymen's oaths.
2 Ibid, Sections 8, 9.
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entry of Vestry Proceedings, Births, Marriages, and Burials, &c., and provide Books accordingly, under penalty.1
"That each Vestry shall meet once a month, &c., under penalty.2
"That tables of Marriages be set up in the several Parish Churches.3
"That the said Vestrymen, and the rest of the Inhab- itants of every Parish, being Freeholders within the same Parish, and contributing to the Public Taxes and Charges there, do once every year, upon Easter-Monday, Yearly, make choice and appoint two sober and discreet Persons, Freeholders of their respective Parishes, to be Church Wardens for that year; all the inhabitants of every Parish, being Freeholders within the same Parish and contributing to the Public Taxes
1 Ibid, Sections 10, II.
The following is the decision in the Saint Margaret's Vestry case, Annapolis, Maryland, involving the interesting question of the rights and duties of a Parish Register in Maryland, decided January 29, 1894, by Revell, J.
"The petition in this case was filed on the IIth of February, 1893, alleging in detail that the relator had all the necessary qualifications entitling him to enrollment on the parish books and to the right of suffrage in the election of vestrymen of the parish; that the enrollment was necessary to enable him to participate in the election of vestrymen at the next election, to be held on Easter Monday following, April 3, 1893; that the register was fully informed of the qualifications of the relator, but refused an application made February 9, 1893, to enroll him, in denial of his rights and in violation of the plain duty of the register and prayed for the writ of mandamus.
"The Vestry Act of 1798, chapter 24, section 2, provides that 'every white male citizen of this State above twenty-one years of age, resident of the parish where he offers to vote six months next preceding the day of election, who shall have been entered on the books of said parish one month at least preceding the day of election as a member of the Protestant Episcopal Church, and who shall contribute to the charges of said parish in which he offers to vote such sum as a majority of the vestry in each parish shall annually, within ten days after their election. in writing, make known and declare, not exceeding $2, shall have a right of suffrage in the election of vestrymen for such parish'.
2 Ibid, Section 12.
8 Ibid, Section 13.
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and Charges thereof, having Liberty also to vote in the Choice of Church Wardens.1
"That the Church-Wardens and Vestry pay the Parochial Charges and Repairs of Churches, etc., "out of such Gifts, Goods, or Chattels as shall come to their hands for the Church or Parish Use"; that the penalties, etc., prescribed by the Act be levied by the Church-Wardens and applied to the Parochial charges ; and in case of insufficient effects to pay the Parochial charges, etc., the County Courts on application of the Parish Vestry and Church-Wardens, to assess the respective Parishes, not exceeding ten Pounds of Tobacco per poll in any one year.2
"That no Minister or Incumbent shall at one Time hold more than two parishes; nor two unless by the desire or Agreement of the Vestry of the said adjacent Parish and con- sent of the Vestries where he resides and Appointment of the Ordinary".3
"Section 3 provides that it shall be the duty of the register to en- roll any person of the Protestant Episcopal Church who shall apply for the purpose on the books of the parish, under penalty, etc.
"Section 5 makes a majority of the vestrymen who shall attend judges of the qualification of voters and of the qualification of the parishoners proposed to be elected as vestrymen.
"The vestrymen under section 6 and the register of the parish, section 18, are required to take and subscribe the oath of support and fidelity and for the faithful execution of their respective offices.
"Now, in this case," continues the court, "what was the duty of the registrar which he was bound to perform, not only under penalty but under the sanctity of an oath? Was it the mere mechanical act of enrolling the name of any person of the Protestant Episcopal Church applying to him for that purpose on the books of the parish? Were this all, then his duty would be plain and he would have to enroll any per- son, black or white, male or female, belonging to said church who made application. But there were other and important qualifications of the applicant to be considered. He must be a white male citizen of this State, above twenty-one years of age, a resident, etc.
"The judges of this court well know the difficulty in determining the perplexing questions of residence and citizenship under the registra- tion law of this State from the numerous appeals arising from the action of the officers of registration which the court has been called
1 Ibid, Section 14.
3 Ibid, Section 16.
2 Ibid, Section 15.
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That Vestries may appoint Lay-Readers in certain cases, such Readers "procuring License from the Ordinary"; that the first Tuesday in Every Month shall be Vestry day, without notice; that Vestrymen may be removed in certain cases, their successors to be elected by the parishioners; that the Vestry books may be inspected by the parishioners, who may appeal from any Vestry proceedings to the Governor in Coun- cil and thence to the Crown; that protestant dissenters shall have the benefit of the Acts of Toleration; and, that the Act of 1700, Chapter I, be repealed.1
By the Act of 1704, Chapter 34, further provision was made for the levying of the "ten per poll" for parochial charges, etc.
And the Act of 1730, Chapter 23, provides for the election
upon to decide, involving delicate and difficult questions of law and fact. The register must also determine whether the applicant lives within the limits of the parish, whether he is a member of the church, and other questions may arise by no means free of difficulty, all of which involve the exercise of discretion or judgment. Discretion is but free- dom to act according to one's judgment-the prompting and exercise of judgment, cautious discernment, discrimination.
"It has been argued," adds the court, "that a denial of relief in this case 'would be a wrong without a remedy; that a vestry in collu- sion with a register could exclude parishoners from all participation in the church government and perpetuate their powers indefinitely.' This condition must assume a corrupt vestry. Were this so, such a vestry being under section 5 of the vestry act, judges of the qualifica- tion of voters and of the qualification of the parishoners proposed to be elected as vestrymen, could strike down as disqualified any one offering to vote for vestrymen or offering himself as a candidate, not- withstanding the register had enrolled every man offering himself as a voter.
"But an applicant offering himself to the register as a qualified voter in said church is no worse off than a registered voter under the laws of this State offering his ballot at an election for President of the United States and being refused by the judge of election, and as the learned counsel says : 'What is he going to do about it' but enforce the penalty prescribed by law and sue for damages? The election is over. His great freeman's right of suffrage is denied, and he is without other relief. I shall sustain the demurrer upon the ground and for the reasons above assigned."
1 Ibid, Sections 17-22.
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by the Vestry, of Vestrymen to serve in the place of those elected who may decline to serve; provides a penalty for those declining to serve; prescribes that the two eldest Vestrymen shall be annually left out and not liable to service again for three years, and provides for the collection of penalties im- posed by the Act of 1702.
Such remained the "Establishment" down to the Ameri- can Revolution, except as affected by the Acts of 1763, 1771, and 1773, to be noticed hereafter.1
1 The Act of 1692, and with its supplementary provisions, was passed not to set up in Maryland any particular church ; but it was deemed the best way to establish better morals and good order in the province, for religion and education were both very little cared for, and the re- sult was a great prevalence of immorality; and though irreligious men, unbelievers or non-believers, skeptics or agnostics, may scorn the claims of the church, yet all men know, who are at all in the tide of life, that the ministrations of the church, and the influence of the gospel through those ministrations, have a powerful effect upon every community for peace and good order. Nor are we called on merely to suppose that immorality abounded. The evidence is sufficient of its prevalence and of its gross character. It might be inferred from general experience, for in all new communities before order has settled down into a definite
habit, vice flourishes. * * * In the year preceding the Protestant Revolution we find the president of the Assembly drawing a picture of the vice of the province in the matter of drunkenness, adultery, Sabbath breaking and swearing. x- Further evidence also of a confirma- tory character is given in the Act of 1692 providing for an established support of the church, for among the functions of the vestry, as then ordered, was one providing for the suppression of adultery within the several parishes, a function that was performed, and their records show how great the evil was. In one parish, and that in some respects ex- ceptionally well placed for moral living, there were ten separate cases of gross immorality passed upon in one month. * * * The establish- ment of the church was a police measure, and a very good police measure it was, for it did what could not otherwise be done. It planted in thirty-one different centers in the colony a house wherein high moral truths were taught-had to be taught-both from the pulpit and from the reading desk, and in this way it created a standard of good living. It also selected a council for morality in all these places, and bound the members to see to the morals of the people; and while the minister was to reprove, rebuke, exhort, the members of this council, or vestry, were to have the ability to enforce the laws of right living. * * In considering the law of 1692, and its subsequent amendment of 1702,
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What was the character of this "Establishment", and what its government, laws, and usages? There is current with some, a general and vague conception that in some way the Eng- lish ecclesiastical system-the English "Established Church", if you please-lies back of the American Church, and in
we must always remember that it was the act of the people and the people only; and not only so, but that what was done was not that which the majority of the people would have desired, but what they felt was the best that their circumstances permitted them to do. For the Church of England which they established, was the church of but a part of one-fourth of the people; the three-fourths being made up of non-conformists of divers names and principles, who had during the last forty years done what they could, more than once, to put down, not only popery, but prelacy as well. The Act was passed at a time when all the freeholders of the colony had the right of franchise, so that the Assembly was not a packed one, but represented all the most intelligent classes of the people. Their Act therefore, must have been contrary to their preferences and could they have avoided it they would. They did not love the Church of England, nor did that church love them. They had been subjected for many years in England, and especially since the Restoration, to many and grievous penalties. But something had to be done, and established maintenance had to be provided that they might have ministerial supervision at all. They were broken up themselves into many names. Maryland was now a royal colony, and the establishment of any one of their different denominations was an entire impossibility ; and yet the need was crying and imperative. They met their difficulties in the only possible way, they provided a mainten- ance for the clergy of the Church of England. For that was all that was done. It was not a state church they set up. No church func- tionary, clerical or lay, had any part in the administration of the colony, saving in the matter of suppressing immorality. * * It was in no degree a state church. The state provided maintenance, and in return ex- ercised jurisdiction so far as to say who should be settled in the par- ishes, and to supervise accounts, so as to know whether the money appropriated was properly spent. * * The system certainly had its defects, as all systems have; and society also afterwards outgrew it, so that it became an achronism and was removed; but in its earlier day, and through very much of the colonial period, it was an unspeakable blessing and accomplished high purposes. It is notable, too, that though at any time down to the Revolution, it could have been abrogated, or could have been rendered inoperative by the rescinding of the provision for the annual tax, yet it was not only continued to the Revolution, but was shown very marked favor when the necessity arose for its repeal.
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