USA > Maryland > Chronicles of colonial Maryland, with illustrations > Part 16
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Indeed, the patience of the people seems to have been phenomenal. It was not until 17632 that the "Forty per Poll" was seriously interfered with, and it was then done only as part of an enactment for amending the staple of tobacco.
In 1771,8 however, a significant Act was passed. It was
1 Lodge, p. 120.
2 Act, 1763, Chapter 18.
3 Act, 1771, Chapter 31.
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limited in effect to seven years, before the end of which time the American Revolution was on and the "Establishment" a thing of the past. By this Act it was, among other things, provided as follows :
"Upon a complaint in writing, by a majority of the ves- trymen and wardens, exhibited to the Governor and Council, setting forth that the incumbent hath willfully neglected to officiate, or hath been guilty of scandalous immorality, the Governor, by the advice of his Council, may appoint three beneficed ministers, and three laymen, in conjunction with him- self, or with the first member of the Council, who shall be of the Church of England, if the Governor be not of that church, to inquire into the grounds of the complaint, by taking deposi- tions in writing. And the sentence of this tribunal may be to admonish, to suspend, or to totally deprive; and, at discretion, they may further award the offender to pay costs. In case of a suspension, the Governor is authorized to appoint a minister to officiate in the party's stead, and to receive the income and profits".1
There is no more important act than this in the history of the Maryland Church. It is the first legislative declaration of the Maryland laity against a life-holding clergy, and was but the foreshadowing of what was shortly to come.
The last Act passed during the Establishment,2 is also not without its significance. The Act of 1763, reducing the "Forty per Poll" to thirty, expired by limitation in 1770. Governor Eden thereupon took the ground that the "Forty per Poll" was restored. The question was taken up by the people, Daniel Dulany leading the Governor's side and Charles Carroll, of Carrollton, the other side. The election of 1773 turned largely upon the question and was decided against the Governor's party.3
In the course of this contest there developed another, being over no less a proposition than that the Act of Establish- ment of 1702 had never been law. The ground taken was
1 Hanson. 2 Act, 1773, C. 28.
3 Brown, p. 266.
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that the Assembly which passed the law was chosen under writs of election in King William's name and convened March 16, 1701-'2, whereas the King had died eight days' before. The Revolution put an end to this question, but, says Hawks, had it not been so determined "it can hardly be doubted that this objection would so far have prevailed as to overthrow the establishment entirely": a striking illustration of the popular feeling towards the clergy and the "Establishment".1
The Act of 1773, Chapter 28, mentioned, provided, "Thirty per Poll" for the clergy, but contained a proviso that it was "not to influence the determination of the question respecting the 40 per poll law".2
Thus stood the "Establishment" at the close of the period under consideration. We examine it in vain for evi- dence of the adoption of any feature of the English ecclesias- tical law, save only as to the supposed legal effect of the induction of a rector. "Lord Baltimore did not found, build,
1 This was probably the most noted political controversy within the annals of Colonial Maryland-more so even, perhaps, than that over the famous proclamation of 1770 to restore the "fee bills" as established by the Act of 1763-The controversy enlisted the most dis- tinguished talent of the Province, and was characterized by a display of ability, learning, spirit and invective not often brought to bear upon any cause and which gave it unusual prominence. The spirit of resistance ran so high that in many cases payment of the tax was successfully resisted-notably in the case of Joseph H. Harrison, a rep- resentative in the House of Delegates, from Charles County. He re- fused to pay the tax and was arrested. He then paid it under protest, to redeem his person, and sued Richard Lee, the Sheriff, for false im- prisonment, the Act of 1702, under which the sheriff was proceeding, being as alleged, null and void. Though there was no actual impris- onment, such was the spirit and temper of the times and the state of public feeling upon the subject, that he was awarded damages to the extent of £60, the full amount claimed. Charles County Court Records, March 1774. - Essays relating to this controversy may be found in Ist Chalmers "Collection of Opinions," p. 303, 343; Maryland Gazette, December 31st, 1772; January 14th and 28th; February 4th, IIth and 25th; March 18th and 25th; April Ist, 15th, 29th, and May 27th, 1773.
2 Hanson.
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or support the churches and chapels, either with or without license from the King. The people built and sustained them".1
Vestries and Church Wardens there were, but with powers and duties differing from those of similar officers in England, and all carefuly prescribed by statute. There was no arch- bishop, bishop, nor church government of any sort. In short, there was no play for the English ecclesiastical law. And the imperfectly understood incident of induction, which had been borrowed, in a blind sort of way, from the mother country, could not itself have found place, had the people and . the Proprietary been at one, instead of being constantly at odds.
In 1774, Maryland, in effect, renounced allegiance to the mother country. A provincial government was then organ- ized, and continued its sessions until the close of 1776, when the new State government had been provided.
On November 3d, 1776, the Declaration of Rights was adopted. By the thirty-third section of this it was declared, that no person ought "to be compelled to frequent or main- tain, or contribute, unless on contract, to maintain any par- ticular place of worship, or any particular ministry". But, proceeds of Declaration :
"The churches, chapels, glebes, and all other property now belonging to the Church of England, ought to remain to the Church of England forever. And all Acts of Assembly lately passed for collecting monies for building or repairing particular churches or chapels of ease, shall continue in force and be executed, unless the Legislature shall by Act supersede or repeal the same; but no County Court shall assess any quantity of tobacco or sum of money hereafter, on the applica- tion of any Vestry or Church Wardens; and every incumbent of the Church of England who hath remained in his parish, and performed his duty, shall be entitled to receive the pro- vision and support established by the Act entitled, An Act for the Support of the Clergy of the Church of England, in this
1 Hawks, p. 258.
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Province, till the November Court of this present year, to be held for the county in which his parish shall lie, or partly lie, or for such time as he hath remained in his parish, and per- formed his duty".
The third section of the Declaration continued in force existing laws, except as altered by the convention "or this declaration of rights."
These provisions destroyed the "Establishment", root and branch. There was no "Established Church" after the date of the Declaration, and no "Forty per Poll" after "No- vember Court". More than this, there were no "patronages and advowsons", no "induction". The Church was left without law and without order. "The Rev. Jonathan Bou- cher and a third of the clergy sided with the Crown. Ulti- mately, quite all the churches were closed, and the clergy, for the most part, left the country".1
In 1779, the legislature acted on the subject of the Church for the first time since the Declaration of Rights. By Act of March, 1779, Chapter 9, select vestries in each parish were provided for. The sections of the Act, material to our inquiry, are the following :
"That the select vestries so to be chosen, and their suc- cessors, shall, as trustees of the parish, be vested with an estate in fee in all the glebe-lands, as also in all churches and chapels, and the land thereunto belonging, late the property of the people professing the religion of the Church of England, and also as trustees aforesaid, shall have full property in all books, plate, and other ornaments belonging to said churches and chapels or any of them".2
"That the said vestrymen, or the major part of them, shall have full power and authority to employ a minister or reader of the Church of England, to officiate in their respective churches or chapels for such time as may be agreed upon ; and may take in subscriptions from all persons willing to contribute towards the support of such minister or reader, and also for the support of a clerk to such minister, and giving a salary not exceeding 30 pounds, to the register of such vestries.3
1 Bishop White's Memoirs, p. 34.
2 Act, 1779, Section 15.
3 Ibid, Section 16.
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"That the possession and free use of all glebe-lands shall belong to the minister of each parish, from the time of his having agreed with the select vestry as aforesaid, for and during the time he shall continue to remain therein as minister of the parish; and he shall be entitled to all profits thereof during the time aforesaid, anything herein contained to the contrary notwithstanding".1
By Act of November, 1779, Chapter 7, this Act was amended (as to Section 15), by vesting in the select vestries, all property of the church, in their respective parishes, includ- ing debts, etc., which, it was thought, the earlier Act might not cover.
But this Act failed to revive the church. The vestries complained of their limited control over the church property, and other objections, to the system created by the Act, were urged, with the result that the Act of 1798, Chapter 24, was passed; which, with an alteration unimportant to our consid- eration,2 remains law to this day.
The preamble recites the inadequacy of the earlier Act, to the exigencies of the church. The substantial changes made by it, which are material to our consideration, are as follows :
The number of the vestry is fixed at eight, in addition to the rector, who is to preside at all meetings and have a vote in case of a tie, but not in any matter "in which he is in any manner particularly interested".ª
The rector is to "have, except he may otherwise contract with the vestry, the possession, occupation, and free use of all the glebe-lands, houses, ground-rents, books and other property belonging to his parish, and be entitled to the benefit thereof during the time he shall officiate therein as rector"."
The vestry is given a fee simple in all lands and a good title and estate in all other property of the church; "and it shall be lawful for such vestry so to manage and direct all such property as they may think most advantageous to the interests of the parishioners, and they shall also have the
1 Ibid, Section 17. 2 Act, 1828, Chapter 136, Section 3. .
3 Act, 1798, Chapter 24, Sections 2, 8.
4 Ibid, Section 8.
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property in all books, plate and other ornaments belonging to said churches and chapels, or any of them".1
The vestry is made a body corporate, with power to re- ceive lands and goods, and to rent or lease the lands "in such a manner as they may judge most conducive to the interests" of the parish ; but the vestry may not sell any of the property of the church without the consent of five at least of the body, of whom the rector shall be one.2
"That the vestry of each parish shall have full power and authority, from time to time, to choose one or more ministers or readers of the Protestant. Episcopal Church (heretofore called the Church of England), to officiate in any church or chapel belonging to the parish, and to perform the other duties of a minister therein, for such time as the said vestry may think proper, and they may agree and contract with such minister or ministers, reader or readers, for his or their salary, and respecting the use of the parsonage house, or any glebe or other lands, or other property, if any, belonging to the parish, and on such terms and conditions as they may think reasonable and proper, and their choice and contract shall be entered among their proceedings ; and upon the expiration of such contract, the said vestry may, in their discretion, renew their choice, or make a new contract, but if they do not incline so to do, their former choice and contract shall remain until they declare their desire to make a new choice or contract".3
Two important differences between these two acts are to be noted. By the earlier, the rector is given absolute possession of the glebe, etc., whereas by the latter, the vestry may, by the terms of its contract, keep him out of such possession. Again, by the earlier, provision is made only for one specific contract between rector and vestry, by agreement of the two parties, whereas, by the latter, the vestry is given power to choose the rector for such time as it may think proper, and if a time limit be set, the vestry may allow the same to pass without losing the right at any time thereafter, to "make a new choice or contract".
1 Ibid, Section 9.
3 Ibid, Section 15.
2 Ibid, Sections 28, 29.
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What, then, is the power of a Maryland vestry as to disso- lution of the pastoral connection of a rector previously chosen ?
It is shown that the ecclesiastical law of England is not and never was in force in Maryland. As matter of law, it has never been decided by any tribunal having proper jurisdiction that even the incident of induction above noted ever had place in the Maryland system. But it is conceded that during the "Establishment" the clergy claimed life-tenure as the "legal effect of induction", the same as in England, and that the claim was so far acquiesced in that no clergyman appears ever to have been removed against his will.
The important point is, that the claim to life-tenure was always based by the clergy upon induction. The case was the same in Virginia. "Without induction, the clergy was held to possess no freehold in his living, but was at any time liable to removal, at the pleasure of the vestry, without trial or even crime alleged against him. Under those circumstances, there were but few of the clergy who could consider their situations as permanent, for there were but few who could prevail upon their vestries to present them for induction. The general custom, therefore, was to hire the minister from year to year".1
What was this induction, that it should work such a result? The very act of induction answers the question: It was the investiture of the parson with the freehold in the church lands, the tenure of which was, of course, for life. The ceremony was as formal as the old livery of seisin, per- formed before the eyes of all. It gave the parson a property interest with which neither vestry nor parish, neither patron nor ordinary, could interfere when once it was vested. The only way in which it could be lost involuntarily was by such conduct of the parson as would lead to deprivation.
The Maryland article of induction was a great improve- ment on the English. The rector got no freehold in anything, and went through no very formal ceremony, but when the Governor or Proprietary "inducted" him, he was in, so that no
1 Hawks, Virginia, p. 88.
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earthly power could ever get him out. Deprivations had no terrors for him.
This monstrous assumption produced its natural fruit : hostility to the church and worse than corruption in the clergy. The state of affairs above set forth, could have produced but one result, i. e., that when the laity should ultimately come to deal with the clergy and its tenure it would do thorough work. It was just this that happened. The Vestry Act of 1779 not only did away with the farce of induction ; it did not even stop at giving the vestry the right to select a minister for the parish ; but it gave the vestry the right to fix the term of the rector's incumbency. The rector was to be employed-note the offen- sive word-for such time as might be agreed upon.
Let it be remembered, too, that at the time this Act was passed there was absolutely no ecclesiastical authority in Maryland. There never had been a bishop, and the undefined, more than uncertain, claim of jurisdiction of the Bishop of London had wholly disappeared. Who was there to interfere between rector and vestry if they should agree? And what rector could get a living unless he agreed with some vestry ?
There was no diocesan convention to keep a parish un- represented in its meetings if it did not happen to meet the convention's views. In a word, the clergy and the vestries were at large, with all the power and advantage on the side of the latter.
The Act of 1798 made no change in those particulars except to intensify them. By its terms the vestry was to "choose" instead of to "employ" its minister, but the rights of the vestry are, if anything, strengthened: in this, that the vestry may make its contract and let it continue in force until it sees fit to change it. Under the Act of 1779 some question may have arisen whether by allowing the rector to remain over his time he had not acquired a fresh term of at least one year. Under the Act of 1798, no such question can possibly arise.1
1 The following is the syllabus of the decision in that case of Saint Matthew's Parish vs. E. H. Bartlett, et al .- 75 Maryland Reports, p. 5. I. Under the Act of 1798, Chapter 24, incorporating the Vestries of the Protestant Episcopal Church and vesting in them the title and possession of all lands and properties belonging to the Church, the
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Thus did the Acts of 1779 and 1798 settle the question of "severing the pastoral connection" in Maryland. The great principal of life tenure had been broken in upon. Maryland had had her full share of experience with a life holding clergy, and when she came to legislate upon the "new conditions", as created by the Revolution, she knew her mind on that subject quite as clearly as upon the subject of civil liberty.
But, to remain secure in the rights thus established, it was deemed necessary, at a later date, to also procure amend- ments to the general canon-canon of the "National Church" -on the subject.
As already stated, the English ecclesiastical law not being in force in this country, except as adopted; and. there being no ecclesiastical courts, or other authority to deprive a clergy- man of his benefice, and the English law in that regard, being incapable of adoption; and, there being no statutes, penal or otherwise, governing the subject of deprivation, or "dissolu- tion of the pastoral connection", it became necessary that some provision on the subject be made, either by the National
vestry is not only authorized to "choose" or appoint a minister, but his tenure and the termination of his pastoral relations are the subject matter of contract between the vestry and himself.
2. That Title Second, Canon Fourth, of the Canons of the Protestant Episcopal Church is inconsistent with the Act of Maryland of 1798, and is therefore not in force in the State of Maryland.
3. That in this case the vestry engaged the rector in compliance with the Act of 1798, and under its provisions, having contracted to pay him a certain sum per year, no other reference to time being made, it was a contract for a definite time, i. e., from year to year, and if such contract had been made for an indefinite time it would have been one to be determined at the will of either party.
4. That in the case before the court, the vestry acted within their powers under the law, and the complainant, Hipkins, is no longer rector of the parish and his bill is dismissed.
The Act of 1798 is not to be found, it is true, in the code. But the code is a codification of the public general laws and the public local laws. This Act is neither a public general law nor is it a public local law. It is a mere private Act incorporating the vestries of a particular religious denomination, private corporations, and being a private law it was not and could not properly be codified as part of the public general laws.
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Church, or by the churches in the several dioceses, or by both of them.
Now, it happened, as of necessity, that the National Church, or General Convention, was formed by the union of churches in various dioceses : at first, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, and Virginia, and afterwards, Massachusetts and New Hampshire.1 With- out going into the subject in detail, it is a matter of common knowledge that the National Church was modeled upon the Union of the States, with the familiar incidents of granted and reserved powers. Gradually, the constitution took form and the body of canons grew.2
Until 1804, however, there was no canon dealing with the dissolution of the pastoral connection. In the year mentioned, there was presented to the General Convention, the memorial of Trinity Church, New Jersey, respecting "an unhappy dis- pute between that parish and its rector".ª The result-very much as it would have been in the Congress of the United States, in a political matter originally unprovided for-was a legislative provision, much deprecated by some, but thought necessary, and, therefore, advisable by the majority.
The object was to govern the matter of severance of the pastoral connection by general law. The original of the canon, "Title II, Canon 4", was the outcome. This canon took very much the form it now has, in 1832, and was finally put in its present form, in 1877 .*
That canon professedly deals with the dissolution of the pastoral connection, and it prescribes a method for bringing about such dissolution. It enacts, in fact, that no rector shall be removed from his own parish against his will, except as provided by the canon. And it proceeds to provide that if the rector does not want to go, he may appeal to the bishop, or other proper ecclesiastical authority, who shall be "the ultimate arbiter and judge" in the matter. And if the bishop,
1 Andrews, pp. 24, 30.
2 See Bishop White's Memoirs, Bishop Perry's History of the American Episcopal Church; Hawk's Ecclesiastical Constitutions.
3 Bishop White's Memoirs; Perry's Handbook, p. 104.
4 Digest of Canons.
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should decide in favor of the rector, and the parish should not submit, the parish shall thereupon become disqualified "from representation in the convention of the diocese, until it shall have been declared by the ecclesiastical authority to have given satisfactory guaranties for the acceptance of and compliance with the arbitration and judgment". But it provides also that it shall not be in force in any diocese with whose laws it may interfere.
From the very first, the right of the National Church, or General Convention, to make canons was very guardedly allowed and its exercise was most jealously watched by the several dioceses.1
In the same General Convention of 1804, there were adopted canons requiring the induction of ministers to entitle them to be considered as "regularly settled", and also providing for the "dissolution of the pastoral connection". Because the provisions of these canons interfered with the rights of certain of the dioceses under existing local law and usage they were so qualified at the very next convention, as to save all local rights.
Maryland was one of the dioceses affected by the canons mentioned. Says Bishop White, as to the requirement of induction :2 "In Maryland the measure interfered directly with the vestry law". Hawks3 says, in relation to the same matter: "This justly gave alarm to the Maryland Church. The vestry Act had settled the rights of ministers as parochial clergymen, and there was consequently some uncertainty, to say the least, as to the legal effect in Maryland of an induction
* In 1807, therefore, the delegates from the diocese to the General Convention were instructed, if possible to have the canon relating to induction reconsidered * * In 1808 it enacted that the canon should not be obligatory on the church in those States with whose usages, laws or charters it interfered".
In as full a sense and to as full an extent the canon relat- ing to the "dissolution of the pastoral connection" en- croached upon the rights of the Maryland Church and
1 Andrews, pp. 58, 59.
2 Bishop White's Memoirs, p. 231.
8 Hawks, pp. 363, 364.
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"interfered directly with the vestry law", which allowed the vestry to contract at pleasure with its minister. Accordingly, this canon was also, at the same time, similarly amended by the provision now contained in section four, to wit: That it shall not be in force in any State, with whose laws it may be inconsistent.1
That these canons are not in force in Maryland, is evi- denced by another most significant consideration. The Con- vention did not like to make these amendments, and, in acting, used these words: "It is understood the church designs not to express an approbation of any laws which make the station of a minister dependent on anything else than his own sound- ness in the faith or worthy conduct".2
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