USA > Maryland > Chronicles of colonial Maryland, with illustrations > Part 15
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Gambrall, Early Maryland, Civil, Social, Ecclesiastical.
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some undefined way furnishes its rules of conduct and gov- ernment. That this is not so, is, we venture to think, abund- antly shown by what is above set forth.
The "English Ecclesiastical Law could have been of no force in a colonial church in this country, until adopted by it, and such adoption could only be by express enactment, or by general usage for so long a period of time as to ripen into law"; for, "if disuse is not to be regarded as proof that a law was inapplicable to the condition of a colony, then it follows, that for more than one hundred years prior to the Revolution, the Colonial Churches were necessarily subjected to foreign law without reference to their consent or wishes. Surely this was never the condition, either in Church or State, of any English colony".1
That it was never the condition of Maryland is beyond peradventure. It would be threshing very old straw to go over the question of the English law in force in Maryland. Kitty's Report on the Statutes, bringing to approximate settlement a matter long open, is testimony to one phase of the question, how much English law was adopted in Mary- land; while the judicial decisions are conclusive that nothing of English law was ever in force unless adopted by legislative acts, judicial decisions, or constant usage.2
But let us examine the Maryland "Establishment" and the Church in Maryland, with this conception in view. And to do this adequately we must first glance at the English establishment.
What this English establishment was and is, will the thor- oughly understood only by a consideration of the following matters: I, The parishes of the church; 2, The property and support of the church in each parish; 3, The government of the church; and, 4, The appointment of rectors, their rights and tenure.
I. A parish is that circuit of ground which is committed to the charge of one parson or vicar, or other minister having
1 Andrews, pp. 42, 43.
2 See opinion of Chase, judge, in United States vs. Worrall, 2 Dall. p. 384; McMahon, C. 3.
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care of souls therein.1 The time when England was first divided into parishes is unknown, nor is it material to our inquiry.2
2. The property of the church in each parish consisted of the parish church and chapels, a "manse", or house of residence for the incumbent, with a glebe or portion of land attached to it, the fittings, furniture, and ornaments of the church and chapels, and the tithes.
As respects the glebe and other lands of the church. the source thereof was as follows :
"Originally, the land was the property of some lay person, which, when the rectory was formed, was dedicated to the church, and conveyed by him to the rector. Thus the free- hold was vested in the rector, and he was entitled to the land, including the grass, herbage, and everything else, as fully as the original owner had been; but, as the land had been set apart by consecration for the church and churchyard, the right which the rector, as the owner of the freehold, had in the profits was proportionately diminished, because he could not desecrate it, or use it for any purpose which was incon- sistent with the object of its consecration. Nevertheless, the enjoyment of the property, so far as it could be exercised by one holding a sacred office, belonged to the rector, as the owner of the freehold".3
But some of the founders, as they are called, were ecclesi- astical corporations, and some of them kings; in every case, however, the effect of the foundation being the same.4
The fittings, etc., were, as a rule, the offerings of "indi- vidual piety or munificence", or "provided by private contri- butions".5
Tithes were paid by the parishioners. Originally, says Blackstone, "every man was at liberty to contribute his tithes to whatever priest or church he pleased, provided only, that
1 Blackstone, Comm. I, pp. III-II3.
2 Earl of Selborne's Defense of the Church of England against Disestablishment, pp. 115, 138.
3 Greenslade vs. Darby, L. R. 3 Q. B. p. 421.
4 Selborne's Defense, p. 114.
5 Ibid, p. 116.
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he did it some",1 and in the absence of specifications they were distributed by the bishop in his discretion. But in the time of Edgar, about the year 970, it was ordered that all tithes should be given to the mother church of the parish; subject, however, to certain provisions for the support of chapels within the parish.2
"The lords, as christianity spread itself, began to build churches upon their own demesnes or wastes * * *
and, in order to have divine service regularly performed therein, obliged all their tenants to appropriate their tithes to the maintenance of the one officiating minister, instead of leaving them at liberty to distribute them among the clergy of the diocese in general; and this tract of land, the tithes whereof were so appropriated, formed a distinct parish. * * * Thus parishes were gradually formed, and parish churches endowed with the tithes that arose within the circuit assigned".ยช
3. The government of the Church of England, was in accordance with the ecclesiastical division of the kingdom, which was as follows: Provinces, of which there were two, Canterbury and York, and of each of which the archbishop was the head ; dioceses, into which each province was divided, and of which the bishops were the respective heads ; archdeaconries, into which each diocese was divided, and over which the arch- deacons respectively ruled, within the limitations of their au- thority ; rural deaneries, each of which had its "rural dean"; and, finally, parishes, into which every deanery was divided."
The archbishop, who was also called the Metropolitan, had general authority over the clergy throughout his prov- ince, besides having a diocese of his own in which he exercised Episcopal jurisdiction.
"The power and authority of a bishop, besides the administration of certain holy ordinances peculiar to that sacred order, consists, principally, in inspecting the manners of the people and clergy, and punishing them in order to reformation, by ecclesiastical censures. To this purpose, he
2 Blackstone, Comm. I, p. III.
2 Ibid, p. 112.
3 Ibid, p. 113.
* Ibid, p. III.
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has several courts under him", as also his dean and chapter as his council. "It is, also, the business of a bishop to insti- tute and to direct induction to all ecclesiastical livings in his diocese".1
A parson had full possession of all the rights of the paro- chial church; and in each parish there might also be a curate, an officiating temporary minister, being, as Blackstone says, of "the lowest degree in the church".
A title very common in the English ecclesiastical system is that of the "ordinary", who is defined as being "one possessing immediate jurisdiction in his own right and not by special deputation"; as, "a bishop, archbishop, or other ecclesiastic or his deputy, in his capacity as an ex officio ecclesi- astical judge".2
Each parish also had its vestry, church-wardens and parish clerks and sextons. Of these the church-wardens were the guardians or keepers of the church and represent- atives of the body of the parish. They were sometimes appointed by the minister, sometimes by the church, sometimes by both together, as custom might direct. They were deemed for some purposes a corporation, having a property in the goods and chattels of the parish and could bring actions in relation to them. They also levied fines, kept order in church, etc.
Vestries, as we understand them, were not in existence. Properly speaking, the vestry was "the assembly of the whole parish met together in some convenient place for the dispatch of the affairs and business of the parish". Every parishioner who paid his "rates" had a right to come to these meetings, over which the parson presided, "for the regulating and directing this affair". "From the practice of choosing a certain number of persons yearly to manage the concerns of the parish for that year" grew up what were known as select vestries. But neither vestries, in the proper sense of the word, nor select vestries had any powers necessary to be noticed.3
1 Ibid, p. 377.
2 Century Dictionary.
3 Burn, Ecclesiastical Law.
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4. As already noted, every rector or person, in order to procure a benefice, had first to be presented, that is, offered to the bishop of the diocese to be instituted. The presentation was made by the patron, as he was called, of the cure, the person having the right of advowson. "The founders of parish churches had power, when parishes were first formed and endowed, to determine in whom the right of 'advowson' (i. e., of presentation to the benefice when vacant) should be vested". This right was a heritable right, passing, on death or alienation, to the heirs or successors in estate of him having the right.1
Upon presentation, the bishop, if he had no objection to the person presented, instituted him; that is, put him in "care of the souls of the parish". Then followed induction, by virtue of which, the parson was in possession of the temporali- ties of the benefice.
At common law, to become a parson, says Blackstone- and, as he declares, "the appellation of parson (however it may be depreciated by familiar, clownish, and indiscriminate use), is the most legal, most beneficial, and most honorable that a parish priest can enjoy", there are four requisites necessary : holy orders, presentation, institution, and induction. Presenta- tion, he says, is the offer of the proposed incumbent to the bishop for institution. Institution is "a kind of investiture of the spiritual part of the benefice", but induction is something of more importance.
"Upon institution, the clerk may enter on the parsonage house and glebe and take the tithes; but he cannot grant or let them or bring an action for them until induction.
"Induction is performed by a mandate from the bishop to the archdeacon, who usually issues out a precept to other clergymen to perform it for him. It is done by giving the clerk corporal possession of the church, as by holding the ring of the door, tolling a bell, or the like; and is a form required by law, with intent to give all the parishioners due notice and sufficient certainty of their new minister, to whom their tithes
1 Selborne, p. 123.
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are to be paid. This, therefore, is the investiture of the tem- poral part of the benefice, as institution is of the spiritual. And when a clerk is thus presented, instituted, and inducted into a rectory, he is then and not before, in full and complete possession, and is called in law persona impersonata, or parson imparsonee."
And one might cease to be a parson in one of several ways only :
I. By death; 2, by cession, in taking another benefice ; 3, by consecration to a bishopric; 4, by resignation, accepted by the ordinary; and, 5, by deprivation, which might be by sentence ecclesiastical, "for fit and sufficient causes allowed by the common law" or ipso facto in certain cases, "in pursuance of divers penal statutes".1
It thus appears that at the common law there was no such thing as a "severance of the pastoral relation" for differences between parsons and their congregations. The parson, once in, had a freehold in the glebe, and the right to tithes, etc .; and could not lose his rights, except by ceasing to be parson, as above indicated. In other words, if not deprived, and if he did not resign or accept another cure, or become a bishop, his tenure was for life.
Contrast with this order of things in the English Church, the Maryland "Establishment".
I. The parishes in Maryland, as mere territories to be committed to the clergy, were well enough provided for by the Act of 1692; that is to say, the direction of that Act, if carried out, would sufficiently have carved the State into parishes.2 And, in the main, this was sufficiently done for
1 Blackstone Comm. I, p. 384-392.
2 Under this Act the Province was divided into thirty parishes, and which in 1694, in respect to churches and ministers, stood as follows: Saint Mary's, two parishes, three churches and one minister ; Kent, two parishes and two churches, but no minister; Anne Arundel, four par- ishes, two churches and one minister; Calvert, four parishes, three churches and two ministers; Charles, three parishes, two churches and one minister ; Baltimore, three parishes, two churches and no minister ; Talbot, three parishes, four churches and two ministers; Somerset, four
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all practical purposes. We find throughout, however, that new parishes were being constantly formed: whether by the division of old ones,1 or the erection of new ones," or by the consolidation of two or more already existing.3 And it was not unnatural that the boundaries of the several parishes should thus become confused, so as to make necessary an Act for ascertaining the boundaries of all.4
2. But, when we come to consider the property and support of the church in each parish, we find a radically different state of things from that in England.
parishes, one church and one minister; Dorchester, two parishes, one church and no minister; Cecil, two parishes, two churches and one minister. (Allen, "Who were the early Settlers of Maryland.") Two years later three more churches had been built, and nine additional ministers had come in, making in all eighteen. (Ibid). In 1720, the number of parishes had increased, to thirty-eight, and in 1760 to forty- two, and there were forty-one ministers. (Hawks "History P. E. Church," p. 170; Allen, "Who were the early Settlers in Maryland.") A majority of these clergymen were of English birth, but a large number of them were Scotch and a few of them Irish. In 1720, it was estimated that there were "between ten and eleven thousand families of Episcopalians in the Province." (Hawks, p. 170.) According to the report of the Governor of Maryland, in 1696, from items furnished, on his requisition, by the Sheriffs of the several counties, made to the Bishop of London, there were in Maryland at that date also, eight Roman Catholic churches, five priests and two lay brothers, limited to the Counties of Charles and Saint Mary's; three Presbyterian churches and two ministers, limited to the County of Somerset; and eight Quaker meeting houses, three meetings in private houses and two preachers, limited to the Counties of Kent, Anne Arundel, Calvert and Talbot. (Allen, "Who were the early Settlers in Maryland.") But in justice, it should here be noted, that the meagreness of this report as to Roman Catholic Priests and places of worship was perhaps due to the fact that they were in Maryland, at that time under "proscription," as the number of Roman Catholics in the Province a few years there- after-1708-was reported to be 2974, and located as follows: Anne Arundel, 161 ; Baltimore, 53; Calvert, 48; Prince Georges, 248; Charles, 709; Saint Mary's, 1238; Cecil, 49; Kent, 40; Queen Anne, 179; Talbot, 89; Dorchester, 79 and Somerset, 81. (London Pub. Rec. Office, Mary- land, B. T. Red No. 4, H. p. 79; Scharf, vol. I, p. 370.
1 Act, 1704, C. 96. 2 Act, 1706, C. 4.
3 Act, 1722, C. 3. 4 Act, 1713, C. 10.
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Some gifts of land there were, but gifts were not the rule. Prior to 1704, "several pious and well-disposed persons" had "granted unto the respective parishes whereto they [did] belong, certain parcels of ground for the use and benefit of a church and church-yard", but, through the neglect of the vestries selected under the Act of 1696, no deeds to such lands had been taken. Wherefore, by Act of 1704, Chapter 38, provision was made for confirming the titles of such lands to the respective parishes, the grand juries being authorized to make inquiry in the matter, etc., and where lands had been given, but the quantity not mentioned, the vestry was author- ized to "take of such lands, for the use of the church, and thereto adjacent, two acres and no more".
Similar provision was made by the Act of 1722, Chapter 4, for confirming lands devised for the use of the church; and, in some cases, special Acts were passed, vesting in the vestry, special gifts of lands.1
Generally, these gifts and devises were to the vestry or parish, but in one instance, at least, the gift or devise was to the rector and his successors.2
Another source of acquisition of lands was by gift or grant of public lands ; as in the case of certain lots in Annap- olis,8 the "Old Stadt-house in St. Mary's city, in St. Mary's county, and the lot whereon the same stands",4 and a tract of two acres, "parcel of fifteen acres laid out for public uses at the town of Vienna, Dorchester county".5
But by far, the chief source of acquisition was in pro- vision of law, mostly in specific instances, authorizing the vestries to buy lands, and levying a tax of tobacco or money to pay therefor and to erect churches thereon. The Acts of this class are practically innumerable and were passed as lately as 1774. In some cases the expression "to make a glebe", or "to be made a glebe"," was used. Besides, the vestries were
1 Act, 1700, C. 5; 1701, C. 5.
Act, 1718, C. 8.
5 Act, 1725, C. 9.
7 Act, 1750, C. 17; 1751, C. 6.
2 Act, 1719, C. 6.
4 Act, 1720, C. 4.
6 Act, 1727, C. 10.
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empowered, with the aid of commissioners, to acquire lands by condemnation,1 in all cases the lands and churches to be paid for by tax.
As respects the fittings, etc., of the churches, there were some few gifts of these, but in the main they were provided out of the "forty per poll" and the "ten per poll", provided for by the Act of 1702.2
The tenure of the land acquired in the several ways in- dicated, whether in the rector (as was the case in very rare instances), or in the vestry (as was the rule), seems to have been such that neither rector nor vestry could make any dis- position of them without authority of the legislature. Thus we find acts enabling the rector to sell or the vestry to sell, or to lease or to exchange lands. These Acts clearly show that the vestries were treated as mere trustees, holding the church properties for the one purpose, "the use and benefit of the church"
3. As for government, the church had none. The "ordinary" was mentioned in the legislation on the subject, but there was no ordinary; and throughout the period we are considering there was no bishop, the first bishop, Claggett, not being elected until 1792.3
Respecting the government of the Church during this period, Hawks says:
"Theoretically, the Bishop of London was the diocesan: spiritual jurisdiction therefore, including the important par- ticular of discipline, belonged to him, and the clergy had all along been accustomed so to think. But they were embarrassed because they found that the matter of jurisdiction was in some mode or other in the hands of the proprietor also
1Act, 1704, C. 38; 1747, C. 18.
2 It has been said that the "art of keeping warm is of modern invention," and eminently was the absence of this art seen in the house of God. For until about two generations ago, the churches of Maryland had no fires in them, or means provided for making fire. There was a fire in the Vestry house, a detached building, but at church time access to it was prevented by the doors being closed and locked .- Church life in Colonial Maryland, 120.
3 Hawks, p. 310.
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Thus Lord Baltimore selected a clergyman in England, and appointed him to a living; the Bishop of London gave him a license; the Governor of the Province inducted him; if he did wrong, the commissary tried him, if they happened to be a commissary ; and when convicted, no power punished him; for after induction, even his Lordship, the Proprietor, could not remove him ; and the Bishop of London, nominally his diocesan, could neither give nor take away the meanest living in the Province".1
"As long as no clergyman could have a living in Mary- land without Lord Baltimore's assent ; as long as the Governor had the sole right of induction, on his own or his Lordship's presentation and as long as the legal effect of induction was to fasten the incumbent on a parish for life, no matter what might be his conduct ; it is perfectly plain that to talk of the jurisdic- tion of bishop or commissary was a mere farce" .?
4. Passing now to the appointment of rectors, their rights and tenure, it is first to be observed that there were no patrons in Maryland, in the sense in which there were in England. All the livings were in the gift of the Lord Proprietary, a right of which he was to the end tenacious. How a rector got his benefice has just been shown by the extract from Hawks. And what his rights were after getting his place may be stated in few words: he got the use of the glebe and parsonage, if any, and his "Forty per poll". These he enjoyed, at first, for life; for so much of English conception of the rights and privileges of a rector seems to have been adopted by Maryland as to give to the formality of induction the same legal conse- quence in Maryland as in England.
That it was the formality of induction which was supposed to work the life tenure is made clear by the above extract from Hawks. And Eden, the last of the Proprietary Governors, saw the matter in the same light: "at present", said he, speaking in 1769 or 1770, "when a clergyman is inducted, he becomes quite unaccountable and independent".3 It is impor- tant to bear this in mind; for after the American Revolution
Hawks, p. 189.
3 Hawks, p. 255.
2 Ibid, p. 193.
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induction ceased. As Hawks says, in 1807, when the question of the canon on that subject was under consideration, "of the Maryland clergy, not one had been inducted, nor was one likely to be".1
Such being, in general, the character of the Maryland "Establishment", it is necessary in order fully to understand it and its effects, to consider briefly the character of the clergy created by the system, and the attitude of the people of the Province toward them.
It is a sad story ; that of the Maryland clergy under the "Establishment". But it is, unfortunately, only too true. The testimony on all sides is in one direction only.
Dr. Hawks, an esteemed clergyman of the Church and once a candidate for the Bishopric of Maryland, cannot be called a hostile witness. Hear him:
"It is not wonderful that the clergy, thus secure in their livings after induction, and with but feeble powers over them for punishment when they did wrong, should sometimes exhibit but a sad example to their parishioners * *
* It must be remembered that it was too much the fashion to send to all these colonies the refuse of the English clergy, insomuch that our wonder is less that the Church in many places did not grow than that it was not utterly extinguished".
"The people looked around among the clergy and saw every man doing just what he thought best; they sought for a power to protect their spiritual interests by punishing the faithless agents of the government in things spiritual, and they found that power-nowhere".2
The pages of Hawks are replete with matter to the same effect. We are not surprised to see him write:
"No wonder that such a bastard establishment as that of Maryland was odious to so many of the people; we think their dislike is evidence of their virtue. It deserved to be despised, for it permitted clerical profligacy to murder the souls of men".3
1 Ibid, p. 363.
2 Ibid, pp. 191, 235.
3 Ibid, p. 236.
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Yeo's letter, above mentioned, written before the "Estab- lishment", reveals a bad enough condition of things :
But the clergy of that day were saintly in comparison with those of the period we are now considering. A less friendly, and, therefore, perhaps a more just critic of the clergy, writes : "The church which finally drove Catholicism to the wall was, perhaps, as contemptible an ecclesiastical organization as history can show. It had all the vices of the Virginian Church, without one of its safe-guards or redeeming qualities * A clergymen, writing in 1714, describes the disregard of holy things as universal; the sacraments as neglected and sometimes not celebrated at all; the manners of all classes as dissolute; and the laws of marriage despised * Mary- land, like Virginia, had also the misfortune of not receiving ministers through the Society for the Propagation of the Gospel. The patronage was badly administered, unworthy men were frequently appointed, and the whole organization closely resembled a corrupt civil service * * It is not easy to conceive the utter degradation of the mass of the Maryland clergy. Secure in their houses and glebes, and the tax settled by law and collected by the sheriffs for their benefit, they set decency and public opinion at defiance. They hunted, raced horses, drank, gambled, and were the parasites and boon companions of the wealthy planters".1 * * *
Truly a shocking state of things; which is here revealed, not because the picture is pleasant to dwell upon, but because it is necessary to enable us to understand the legislation presently to be noticed. Small wonder that the clergy "were not only despised, but they were bitterly disliked", and that they were constantly opposed by government and people.
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