USA > Maryland > Chronicles of colonial Maryland, with illustrations > Part 7
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Maryland's position indeed, in the matter of religious tol- eration was a long stride in the march of religious freedom, and a most important factor in the advancement of civilization.1 It
1 The history of Rhode Island, in the matter of religious tolera- tion, is a record, while broad in its terms was very limited in applica- tion, and the attitude of Roger Williams towards it is indeed unique, when considered in connection with the fact that he enjoys the dis-
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was an age of intolerance; an age when bigotry was the bane of every religious sect ; an age, as has been well said: "when those who had dwelt under oppression, instead of learning tol- erance by their experience, had but imbibed the spirit of their oppressors". In the old world, whether of the Church of England, the Kirk of Scotland, or the Vatican of Rome, the life of the dissenter and non-conformist was one of oppression and hardship. And in the new world conditions were no bet- ter. In the North and in the South, there was freedom of worship, but only for themselves and for those who would exercise it at the altar of their particular shrine. In Massachu- setts, the Puritan would not tolerate the Episcopalean, and in Virginia, Carolina and New York, the Episcopalean gave no quarter either to the Puritan or the Roman Catholic. Even in
tinction of having been its founder and patron. In 1638, five years after religious toleration had been established in Maryland, appeared the first "compact" for the government of Providence, and without interference in the matter of religion. It was signed by Richard Scott, the brother-in-law of Ann Hutchinson, whose farcical trial and ruthless banishment from Massachusetts he had just witnessed, and by twelve others, who with Scott constituted a large part of the little colony of Providence. This "compact" consisting of seventy- three words only, in its original form, is pasted on the first page of the first volumn of the Providence Records. It was an agreement to sub- mit in obedience to all such orders as might be passed for the public good * * * but "only in civil things". It was the last four words that gave to the document a marked distinction and made it ring with clearness that religious liberty was the watchword of the hour. Roger Williams did not sign the "compact". He did not believe in a govern- ment "only in things civil", but in a state in which the church was su- preme, and in which all law was directed from a spiritual source. His book, George Fox Digged Out of the Burrowes, and his letters to the Endicotts and Winthropps, still preserved, show a degree of animosity and hatred to Quakers and heretics that would make the suggestion of religious toleration towards them a caricature and a trav- esty upon words. As to them, at least, his police regulation must be more potent and far reaching than that of a government "only in things civil".
In 1643 the first Royal charter of Rhode Island was granted. It was obtained by Roger Williams, who went to England for that purpose. That charter did not contain a word as to religion or a word about the freedom of worship. Later, John Clark, one of the signers of
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Rhode Island, where a higher degree of freedom is supposed to have prevailed, the Roman Catholic and the Jew, were deprived of political privileges which were accorded to others.
At such a time, and under such conditions, the fact that Maryland unfurled and planted upon her ramparts the banner of religious freedom for the first time in the new world must be accepted by the impartial historians as one of the crown- ing glories of the age, for it was significant of the introduction
the "compact", was sent to England to obtain a new charter, and with which he returned in 1663. It fairly bristled with the spirit of religious toleration, a fact which seemed to stimulate the General Assembly of Rhode Island, of which Roger Williams was a member, to promptly pass an Act disfranchising Roman Catholics and all non-Christians. This statute continued in force until the American Revolution. There were apparently no Roman Catholics in Rhode Island to test the validity of this Act; but some Jews undertook to do so in 1762, upon the ground that it was inconsistent with the charter of 1663. The Supreme Court of Rhode Island, however, decided that, while all persons living in that state were guaranteed by the charter protection in the matter of religion, it was perfectly competent for the Legislature to pass enact- ments which would, in effect, keep out of the state the votaries of any creed which the people of Rhode Island did not want among them. The record of the court reads : "The petition of Mess. Aaron Lopez and Isaac Elizar, persons professing the Jewish religion praying that they be naturalized *
* By the charter granted to this colony, it appears that the free and quiet enjoyment of the Christian Religion and a desire of propagating the same were the principal views with which this colony was settled, and by a law made and passed in the year 1663, no person who does not profess the Christian religion, can be admitted' free into this colony. The Court therefore, unanimously dis- misses this petition as wholly inconsistent with the first principles on which this colony was founded, and a law of the same, now in force."
A strange religious toleration indeed is that which denies civil liberty because of religious belief, and stranger still that we should be taught that Rhode Island was the nursery in which was reared the most sublime specimen of religious liberty which the world had ever seen, and that Roger Williams was the great apostle who nurtured it to maturity.
Early records of Providence, vol. I, p. 15-20; S. A. Peckam, Jr., American Hist., vol. 3, No. 2; Cobb, vol. I, p. 4-38; Knowles, vol. 3, p. 10; Justin Winsor Hist. of America, vol. 3, p. 379-80; Rhode Island Superior Court records, March Term, 1762.
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not only of a new era and a new element into the history of human civilization, but of a powerful movement in the progress of its fuller and higher developments. It was an act in advance of the times, and a new thought for the human mind.
And thus it was, that, amid all the religious fermentations of the times and the persecutions of the age, in Maryland, upon a foundation wisely and securely laid, there rose up, in majestic grace and in matchless splendor, an altar to religious free- dom before which every man could worship his God, without fear and without favor, and in whatever creed he believed would best enable him to renew his peace with his Maker and his charity with the world.
Authorities : Baltimore's Instructions, 1633, Md. Hist. Soc. and Makers of America, page 46; Archives Pro. Ct. 1638, p. 35; Ibid 38; Ibid Ass. Pro. 1642, p. 119; Ibid Pro. Cl. 1648, p. 209; Ibid Ass. Pro. 1649, p. 244; Bozman 2, p. 72; Day Star, 35 to 66.
CHAPTER V
Separation of Church and State in Colonial Maryland
F OR more than a thousand years the whole of Christendom had been governed by a union of Church and State, with the result that, the Church grasping for more power and larger dominion, and the State frantically endeavoring to prevent further encroachments upon its authority, the world, from time to time, had been convulsed with their feuds and their turmoil. The evils of the system were distinctly felt, but how to avert or overcome them seems not to have been clearly understood and it fell to the destiny of Maryland to work out that abstruce problem in political economy.
Cecilius Lord Baltimore, with keen discernment and far- sighted sagacity, knew that the blending of religion and poli- tics was degrading to the Church and detrimental to the State, and that it had been responsible for the great political up- heavals and religious fermentation which had characterized its existence from time immemorial. Maryland was to stand upon a higher and a more enlightened plane, and to that end in Maryland there must be a complete separation of Church and State. It was a prodigious undertaking, for it at once involved the positive assertion of the temporal powers over ecclesiastical persons and things, and that, too, in direct violation of the Papal Bull on that subject, but it meant also the absolute over- throw of the Canon law so far as Maryland was concerned. The Canon law was the law of the Church and the law under which the Church performed its functions in governmental affairs. It not only asserted exclusive jurisdiction over all ecclesiastical persons, property and things, but it had made such gradual, yet steady encroachment upon the civil law that it had drawn many of the most important departments of the
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latter within the circle of the ecclesiastical authority. It claimed, among other things, the exclusive right over all matters testamentary and in accordance with its own rules, as 'well as over all questions of marriage and divorce. It de- manded exemption, both as to ecclesiastical persons and prop- erty, from the civil authorities and the right of the Church to hold land without interference by the civil powers and free from all public charges. This was not consistent with Balti- more's broad policy as to Maryland. Equal rights to all, but special privileges to none, was a cardinal rule. The civil law alone was to prevail. It was to stand as the shield and pro- tector of all alike, a rule to which there was to be no excep- tions, either lay or ecclesiastical. The Canon law was not to find lodgment in Maryland, and to whatever extent it had done so, it must be displaced. In Maryland there could be no set- tlement of estates or questions of marriage and divorce deter- mined by ecclesiastical courts, or by Canon law rules ; no leg- islation by ecclesiastical bodies applicable to ecclesiastical per- sons and things ; no exemption of ecclesiastical persons or prop- erty from the temporal authority ; no holding of lands in mort- main and free from public charges by ecclesiastical persons or corporations, or by any one else for their use and benefit; no interference in any way whatsoever by ecclesiastical persons, as such, with secular and governmental administration. The Church and State must stand apart, each away from the other, and each occupy its appropriate position in ecclesiastical and in secular affairs.
Maryland, as yet very young, had not had any of its func- tions of government administered by ecclesiastical persons or their tribunals, but the claim that the Canon law was to pre- vail in Maryland, because it was the law of the Church, had been distinctly made, and the Jesuits, who were the only ec- clesiastics in Maryland at that time, were already acquiring large tracts of land from the Indians and holding them for the "use of the society", without regard either for Baltimore or the rules of his land office. It was truly a momentous issue and a critical moment for the Proprietary, and one that, unless
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handled with consummate skill, would inevitably bring him at war with his Church, both at home and abroad. But with a grandeur of nature, strength of manhood and keen diplomacy, which marked Cecilius Lord Baltimore as one of the foremost men of his age, he fully measured up to the requirements of the hour. Discreetly, but firmly, he now proceeded to put into execution the plans which he had matured for his policy as to Maryland. He did not issue a proclamation on the subject, thus averting possible confusion and perhaps alarm. Nor did he attempt to cover the entire subject matter by one general ordinance. He selected and sent over to Maryland to carry out his policy, Mr. John Lewger, a brilliant scholar and a strong man. He arrived in Maryland in 1637, armed with a commis- sion as secretary of the Province. The same document also made him sole commissioner in all matters testamentary in Maryland for the proving of wills and the granting of adminis- tration. Mr. Lewger at once entered upon the duties of the office of testamentary commissioner. Thus did Baltimore clearly assert and establish jurisdiction of the temporal authority over all matters testamentary arising in the Province, ecclesiastical persons and property inclusive. He next procured, through Secretary Lewger, the passage of an Act of Assembly adopting the law of England as the law of Maryland, and by which laws the courts were to try all persons and causes, except where there was a law of the Province on the subject. Thus was the temporal power over all laws and judicial proceedings as- serted and secured, closing all further question as to the eccles- iastical law and ecclesiastical courts in Maryland. An Act re- lating to marriage and divorce was next passed, and by it, the whole subject and questions relating thereto, were brought directly within the control of the civil, rather than the ecclesias- tical authority. Baltimore now issued new conditions of plan- tation, by which he prohibited churches or any corporation, ec- clesiastical or temporal, from taking up lands in Maryland, or of holding them from any source whatever, for the use of any church, society or corporation, in all cases which were covered by the English statute of mortmain. Thus did he effectually put an end to the scheme of building up in Maryland
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of vast landed estates for the use of religious societies, and to- wards which the foundation had been so distinctly laid. He next demanded the surrender of all the lands which the Jesuits had obtained from the Indians, and which they were holding for the use of the society. This order, when complied with, would fully round out and complete his whole policy in the matter of Church and State in Maryland, and place it upon a founda- tion as enduring as he, Secretary Lewger and the Maryland Legislature could make it. No Canon law or Canon law court ; no exemptions of any kind whatsoever, either lay or ecclesi- astical as to persons or property and no estates to be held in mortmain.
By this time the Maryland Mission was in a state of su- preme consternation and prepared to make the warmest re- sistance to what it deemed a burning outrage upon the "Di- vine rights of the Church." The first proposition was that Baltimore would enter into a secret treaty with the Maryland Mission, by which its members would publicly appear to be amenable to the new condition of things, but that in reality, they would not be. Failing, of course, in this, they disputed his title to the lands they had acquired from the Indians, alleg- ing that the Indian title was superior to that of the English Crown. They then referred all that transpired to Rome, with the request, that it be there decided, whether they were not en- titled to the Canon law in Maryland by Divine right ; whether they were not entitled to all the privileges and exemptions, both as to person and property, found in all Roman Catholic coun- tries ; whether all questions of marriage and divorce, were still not under Church control, and all matters testamentary also, and particularly whether a Roman Catholic executor would still not be entitled to pay out from the estate of the deceased, his spirit- ual obligations before paying his legal debts, and finally, whether the whole proceeding was not null and void, and would not the attempt of Baltimore to enforce it clearly subject him to the penalty of excommunication. Baltimore, however, was not resting on his oars. As soon as his policy had taken definite shape, he submitted the whole matter to Father Henry Moore, the provincial of England, who in turn laid it before the author-
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ities at Rome. It was promptly decided that there was nothing in the conditions of plantation which would in any way render Baltimore liable to the censure of ex-communication. It was also held, that Baltimore was entitled to have all the lands surrendered to him which the society had obtained from the Indians, or from any other source, for the use of the Church, and as the provincial of the Society of Jesus in England, he executed to Cecilius Lord Baltimore, a deed conveying the estate of Mattapany, the manors of the Immaculate Concep- tion and Saint Gregory, as well as any and all other lands in Maryland, which the society had obtained from the Indians and from all other sources for the use of the society. There was also a renunciation of all claims to exemptions from the operations of the civil law, and an acknowledgment of the power of the temporal authorities to have exclusive jurisdic- tion over matters testamentary and matrimonial. Beyond this the records do not disclose how the Canon law question and that of temporal or ecclesiastical supremacy, were settled, but it all seems to have been suddenly abandoned and nothing more is heard of it.1
1 Cecilius Lord Baltimore, while a Roman Catholic, and one whose churchmanship is not in question, entertained a great dislike to the Jesuits. He did not trust them. "I am satisfied", he wrote Governor Leonard Calvert "that they do design my destruction, and I have too good cause to suspect that, if they cannot make or maintain a party by degrees among the English to bring their ends about they will en- deavor to do it by the Indians, by arming them against all those that shall oppose them, and all under pretense of God's honor and the propagation of the Christian faith, which shall be the mask and vizor to hide their other designs withal". He informs Governor Calvert that another of them "hath by a schleight got aboard" and had started for Maryland. He wants him intercepted and sent back at once, but should he "escape your hands", then "do not fail to send Mr. Copley away from thence by the next shipping". Thomas Copley, the leader of the Mary- land Mission, had been a troublesome factor and a disturbing element in the community, and to have the two in the Province at the same time, was more than he deemed it wise to permit. Baltimore did not designate them as Jesuits, but contemptuously refers to them as "those of the hill of St. Inigoe's", that being the name of the place at which the order was founded by Inigoes Lopez, Saint Ignatius. He
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Thus it was that this important corner stone to the state- hood of Maryland, was securely laid, and thus was organized the first civil government in the history of the Christian world which was established upon the distinctive basis of independence of Church and State in their relations to each other. This great principle, however, was slow in taking root elsewhere, owing to the opposition of the Church, and of what- ever church happened to be the established church of the land. But it came. Its voice was heard again when Maryland framed her bill of rights ; it flashed anew when the time came to formu- late the Federal Constitution, and its echoes have been heard again and again, when, from time to time, within the last two hundred years, the glad tidings of advancing humanity, have been wafted to us from lands beyond the sea, until today, the adoption of that great principle of true statehood to which Maryland gave birth and nurtured to maturity, is almost co- extensive with civilization itself.
orders the Governor under no conditions to allow them to take up any more land in Maryland. In 1641, Baltimore asked that a Prefect and Secular Priest authority be granted for Maryland. This was done, and permission was given Baltimore to remove the Jesuits. Don Ros- setti, Arch Bishop of Farus, was designated to take charge of Maryland. He did not, however, come and the Jesuits were not removed. Johnson Foundation of Maryland 64; Calvert Papers No. 1-216.
References : Johnson, Foundation of Maryland, p. 58; Maryland Historical Society, F. P. number 18, P. 56-63; Archives, Pro. Cl. p. 58; Archives, Ass. Pro. p. 82-97; Stoneyhurst Mss. Anglia No. 108-A, vol. 4; Calvert papers, vol. I, p. 157-166, Md. His. Soc. F. P. number 9, p. 249; Stoneyhurst Mss. Anglia, vol. 4, p. 108.
CHAPTER VI
The Land Tenure of Colonial Maryland
BY the Maryland Charter, the Baron of Baltimore was made the "true and absolute Lord and Proprietary" of Maryland, and invested with all the "rights, prerogatives and immunities" that had ever been enjoyed by the Bishop of the County Palatine of Durham-than which, no higher grant was ever made to an English subject.
Of the Counties Palatine (so called, because in a Palatio, the owner was the supreme power, as fully as was the King in his palace), Durham, was the only one in England at that time, which was held by a subject, and hence, the one named in the Charter.1
As the "ruler of the Province and the owner of its soil", Baltimore was also expressly authorized and empowered to dispose of the whole or any part of the premises, or of any estate or interest in its lands, for such time, and on such terms as to him might seem most expedient. The Charter also invested him with the right to introduce in Maryland, the
1 Kilty, Landholder's Assistant, p. 12. But the juro regatio, which attached to the person of the King, did not attach to Lord Baltimore. He did not have the incidental pre- rogatives of the King, and only such of the direct ones as were ex- pressly granted by the Charter .- 2 H. & J. Maryland Reports, p. 250.
The Proprietor had even more power than any Bishop of Durham ever had. Within the Province of Maryland, the Proprietor had legal power. It was his justice that was administered in the courts, and all writs and warrants were issued in his name. These courts were ap- pointed by him, and he determined their jurisdiction and manner of proceeding. In them he had the laws executed, and passed sentences amounting even to confiscation and death. He likewise had the royal power of pardon, and had admiralty jurisdiction. The Proprietor could erect towns, boroughs, cities, and ports of entry and departure.
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feudal system, which had then been practically broken up in England, and further provided that the statute of "Quia
From the Proprietor all land was held. He received all escheats and fines for alienations, and had sovereign title to all mines, wastes, forests, and chases. He could erect manors with court leet and court baron. The Proprietor could raise troops and levy defensive warfare, even pursuing enemies without the limits of the Province. He could impose duties upon ships and merchandise. He could establish churches and chapels, and have them consecrated according to the ecclesiastical laws of England. He held their patronage and advowsons. Only through the Proprietor could the King do anything in the Province. All these powers belonged to the Palatine of Durham, and all except the ecclesiastical were exercised by the Proprietor of Maryland.
In the matter of legislation there is a difference. There was no pro- vision in Durham for the assembling of the people to make laws. If the Palatine wanted any new laws, they were passed by his Council, which was composed of the chief men of the county. The Proprietor, however, had the right to call assemblies of the freemen and enact laws with their assent. But the colonists insisted on their right to propose and enact laws with the assent of the Proprietor. This right was ob- tained. The Proprietor retained his right to initiate some legislation but not all. Maryland laws, like those of Durham, were published in the courts. The Proprietor was not obliged to submit these laws to the Crown for approval. In addition, the Proprietor could publish ordi- nances not extending to life, member, or property. This has been aptly designated as a police power. Again, the Proprietor possessed an ad- vantage over the Bishop of Durham, in that cases between the Bishop and his subjects could be appealed to the Court of Exchequer in Lon- don, whereas cases between the Proprietor and his subjects were finally settled in the Proprietor's courts, from which there was no appeal to the King. Parliament levied taxes on the Bishop of Durham, and these were collected by his officers, as taxes were collected in Maryland by the Proprietor's officers, but Parliament had no power to tax the Pro- prietor of Maryland, and the Charter exempted him from royal taxation.
The administrative machinery of the Proprietary Government bears some likeness to that of the Durham Palatinate. The Governor of Maryland was its administrative head. He had the highest judicial jurisdiction, and presided over the Court of Chancery. Thus he resem- bled the Chancellor of Temporalities of the Bishopric of Durham. In both governments are seen the Receiver General. In both the Sheriff was the executive officer of the Palatine, collected the revenue, and was responsible to the Palatine alone. The Seneschal of Durham bore some resemblance to the Surveyor General of Maryland, and Bailiff to the
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Emptoris",1 intended to prevent subinfeudation, and which had, in effect, abolished the manorial system in England, should be dispensed with, and conferred upon him the privi- lege of erecting manors in Maryland, with all the manorial rights which had been incident to such estates in England- thus making the Baron of Baltimore the sole tenant of the crown, and at the same time securing to him, as the exclusive landlord of the Province, all escheats, fines, and forfeitures.2
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