USA > Maryland > The Day-star of American freedom, or, The birth and early growth of toleration, in the province of Maryland : with a sketch of the colonization upon the Chesapeake and its trobutaries, preceding the removal of the government from St. Mary's to Annapolis > Part 3
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THE DAY-STAR.
CHAPTER VII.
'" The Act concerning Religion."
THE " Act concerning Religion " (for that is the the title of the law), has already been printed. But it forms so important a link in the chain of this narrative, that its leading provisions should be stated. The design was five-fold :- to guard by an express penalty " the most sacred things' of God ;" to inculcate the principle of religious decency and order ; to establish, upon a firmer basis, the har- mony already existing between the colonists ; to secure, in the fullest sense, freedom as well as pro- tection to all believers in Christianity ;" and to
1 "Sacrosancts " was used by the Latin fathers (see Andrews and other authorities) for the most sacred things. And such I take to be the sense intended in the writings of English divines and in state papers corresponding with the date of the charter. In this I am confirmed also by the action of the provincial legis- lature.
2 Upon the Records of the High Provincial Court is preserved
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ACT CONCERNING RELIGION.
protect quiet disbelievers against every sort of reproach, or ignominy. In determining the diffe- rent lines and landmarks, a regard, of course, must be had to the spirit of the charter, to the theolo- gical notions of the age, and to the character of the elements, which then composed the population of the province.
a case in which the prisoner, a Roman Catholic priest, vindicated his right under this leading provision of the law. It is, in many respects, a very interesting one, and sheds a great deal of light upon the domestic, social, and religious history of this period. The Act of 1639 included, we have seen, the English and the Roman Church. But the one of 1619 practically gave to the term " holy " a much more comprehensive signification.
In Father Fitzherbert's case, the following are the proceedings of the court, which was held at St. Leonard's Creek, " the 5th of October " o. s. A.D. 1658. Present-Gov. Fendall ; Philip Cal- vert, Esq., Col. Utye, Capt. Stone, and Messrs. Job Chandler and Baker Brooke.
" An information of his lordship's attorney against Francis Fitzherbert, for practising of treason and sedition, and giving out rebellious and mutinous speeches, in this his lordship's province of Maryland, and endeavouring, as far as in him lay, to raise distraction and disturbances in this his lordship's said province.
" 1, Francis Fitzherbert did, on ye 24th of August, 163S, traitorously and sedi- tlously, at a general meeting in arms of the people of the upper parts of Patuxent River, to muster, endeavour to seduce, and draw from their religion, the inhabi- tants there met together.
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THE DAY-STAR.
1. The proprietary had the right upon all doubt- ful points, to construe the charter in that manner which was most favorable to himself. But no interpretation was allowed inconsistent with the "Sacrosancta Dei," and the "Vera Christiana Religio "-the former, doubtless, implying a pro- hibition of the most wicked kind of blasphemy, as
" 2. He did use the same traitorous and rebellious practice at Newtown on the 30th of August, 165S, the people being met together for ye end aforesaid.
"3. That, by these his traitorous and seditious practices, he hath caused several inhabitants of this province to refuse to appear at musters ; that they shall thereby be incapable of defending the peace and liberty of ye inhabitants of this his lordship's province, against the attempt of foreign or homebred enemies.
"4. That he hath rebelliously and mutinously said, that if Thos. Gerrard, Esq. (of the council), did not come and bring his wife and children to his church, he would come and force them to the church, contrary to a known Act of Assembly in this province.
"Rt. Honourable-Since I writ my last to you, I have received a message from Mrs. Gerrard, which is that Mr. Fitzherbert hath threatened excommuni- cation to Mr. Gerrard, because he doth not bring to his church his wife and children. And further, Mr. Fitzherbert saith, that he hath written home to ye head of the Church in England, and that if it be their judgments to have it so he will come with a party and compel them.' My lord, this I offer to your lordship, as Mrs. Gerrard's relation, who I think would not offer to report any such thing if it were not so. And, my lord, I thank God, ye government of ye country is now in your officers' hands. But I think (and I have good grounds to think so) that it will not long continue there if such things be not remedied. I told Mr. Fitzherbert of it, about a year since in private, and also that such things were against the law of ye country. Yet his answer was, that he must be
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ACT CONCERNING RELIGION.
well as the desecration of the most holy institu- tions ; the latter defining or bounding the pledge of religious freedom to the Roman Catholic by secur- ing the same liberty for the English churchman. And there cannot be reasonable doubt, that among statesmen as well as ecclesiastics, two centuries ago, the Lord's Day and the Trinity (or. funda-
directed by his conscience more than by the law of any country. I do not, my lord, thrust myself upon any business of quarrel ; but it is peace and quietness I desire. And I hope your lordship hath no other cause but to wish the same. And so I refer the consideration of it to you ; and remain your lordship's most faithful servant to command,-HEN : COURSEY.
" Thos. Gerrard, Esq., saith upon oath, that having conference with Mr. Fitzherbert, as they were walking in the woods, and in his own orchard, touch- ing ye bringing his children to the Roman Catholic Church, he gave Mr. Fitz- herbert reasons why It was not safe for himself and this deponent. And the said Mr. Fitzherbert told his deponent that he would compel and force them, And likewise, he said, that he would excommunicate him; for he would make him know that he had to do with ye bringing up of his children and his estate.
"The deposition of Robt. Slye, aged 30 years, or thereabouts, sworn and examined in open court, saith :- That some time in or about July or August in the year 1656, Mr. Fitzherbert being then at this deponent's house, this deponent desired Mr. Fitzherbert to inform him who it was that had scandalously and falsely accused him of beating his Irish servants, because they refused to be of the same religion of him, the said deponent. Which request Mr. Fitzherbert refused to grant, saying that he did believe the report to be false; and therefore desired him, this deponent, not further to urge him in that business, for be would not, and could not, disclose the author thereof. Mr. Fitzherbert told ye sald deponent that Mr. Gerrard had also beaten an Irish servant of his like- wise, because sbe refused to be a Protestant, or go to prayer with those of his 3*
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THE DAY-STAR.
mental article of revealed religion) were two of the " most sacred" things of God. This fact accounts for the penalty against those who were guilty of violating the sanctity of the "Sabbath;" or of " cursing " God, that is denying the great doctrine of the Athanasian creed.
2. A history is not an argument. In any other
family that were so. To which the said deponent replied, that. that story was like the other (or words to yt purpose); from which discourse likewise we fell to other relating to Mr. Gerrard and the children. Mr. Fitzherbert told him, the said deponent, that Mr. Gerrard, although he professed himself a Roman Catholic, yet his life and conversation was not agreeable to his profession. The said deponent asked him his reason. Mr. Fitzherbert answered, because he brought not his wife and children to the Roman Catholic Church. Moreover, he told him, the said, deponent, that ;if Mr. Gerrard would not bring his children to his church he would force and compel him thereunto, if he were the same in reality, that he pretended himself to be. Moreover, that if Mr. Gerrard's life and conversation was not otherwise for the future than what it had been formerly, he would draw his sword against him, if he made choice of him for his father confessor, or to that effect. By the word sword this deponent understood, that he meant the censure of ye church. But this deponent under- stood not what he meant by the words force or compel. Mr. Fitzherbert told this deponent further, that if MIr. Gerrard brought not his children freely to his church, nor educated them in the principles of the Romish religion, he would take such a course that he would undertake their education in Mr. Gerrard's own house, whether Mr. Gerrard would give way thereunto or no. This depo- nent advised Mr. Fitzherbert to forbear to proceed according to such resolution. Whereupon, after long arguing about this business, Mr. Fitzherbert told the said deponent that if he would tell him his opinion, what it were best to do in relation to Mr. Gerrard, his wife, and children; and he, the said Mr. Fitzher-
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FATHER FITZHERBERT'S CASE.
place, a dispute indeed upon a question of religious decency would be quite as useless as one upon a point of taste. But - the world, either Roman Catholic or Protestant, is hardly yet so wise as to be prepared to condemn Lord Baltimore and the Assembly of Maryland for the imposition of a fine of five pounds upon the man who should dare to
bert, promised him to follow his counsel. This deponent advised him not to disturb Mrs. Gerrard nor her children, in relation to their religion, or words to yt effect, as the deponent hath declared. And further saith not.
" Henry Keine, sworn in open court, maketh oath, that he went to Mrs. Brooke's house upon a summons to a muster, the 24th of July last, when Mr. Fitzherbert made a sermon. And Mr. Fitzherbert, coming forth, demanded of them how they liked his doctrine. And further, ye said Mr. Fitz- herbert said, if any would give him leave to be in their house, he would now and then come and give them a sermon. And, if he could get leave of the governor, he would preach at the court-house. That night, or the next day. Richard Games, turning Catholic, came home, and brought two books with him, which he said Mr. Fitzherbert gave him. And further saith not.
"John Grammer maketh oath, that he was present at the muster at Mrs. Brooke's house, at the same time. And there he heard a declaration, or sermon, by Mr. Fitzherbert, not expecting any. And after sermon Mr. Fitzher. bert said, that if the people in this river would hear him he would come now and -
then and give them a sermon. He asked them how they liked his doctrine. But he heard nobody make answer to him. The next day being Sunday, this deponent and his wife, going to Mrs. Brooke, he met there Mr. Fitzherbert, who asked him again how he liked his sermon. Who answered, yt some things be liked, and other some he did not like. Mr. Fitzherbert then asked him what those things were he did not like? and walked out with this deponent, when they had a quarter of an hour's discourse. And in discourse, he gave him, this
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THE DAY-STAR.
speak reproachfully of "The Blessed Virgin," or of the heroic evangelists and apostolic martyrs of the primitive church.
3. There is a striking difference between reli- gious uniformity and social harmony. And it was an object of the law to tolerate the want of the one, and to promote the growth of the other. In this particular, it was but the development of the policy which had been adopted under the first governor's administration. Bounded by the pre- ceding explanations, the law throughout breathes the spirit of peace and charity as well as harmony.
4. Freedom, in the fullest sense, was secured to all believers in Christianity ; to Roman Catholics and Protestants ; to Episcopalians and Puritans ; to Calvinists and Arminiaus; and to Christians of
deponent, indifferent good satisfaction-his memory being but weak on Scrip- ture. And in conclusion of the discourse, Captain Thos. Brooke came and called ye said Mr. Fitzherbert in to dinner. And (whether after dinner or before he remembereth not) he gave him a little catechism book, desiring him to read it; bidding him, after he had read yt book, call to Richard Games for another book. And further saith not." See Lib. S. 1658 to 1662. Judgments pp. 102-105.
On page 1082 is the following :- 1
" Then was put an information against Francis Fitzherbert, by his Lordship's attorney-general, follo 102.
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ACT CONCERNING RELIGION.
every other name coming within the meaning of the Assembly. A Christian was a believer in Jesus Christ. The belief in Christ was synonymous with a faith in his divinity. And the recognition of his God-head, was equivalent (such is the clear intention of the Act) to a confession of that article in the apostolic creed, which teaches the great doctrine of the Trinity. The act of the Assembly also fully explains the oath which had been imposed upon the governor, and the privy counsellors. And the believer enjoyed not only a freedom but also a protection. He who " troubled, molested, or discountenanced " him, was, according to the law, fined for his offence.
5. From the language of the Act, as well as the subsequent practice of the government, it is evi-
" To which Francis Fitzherbert demurred in law :
" 1. Neither denying or confessing the matter here objected, since by the very first law of this country, Holy Church, within this province, shall have and enjoy all her rights, liberties, and franchises, wholly and without blemish, amongst which that of preaching and teaching is not the least. Neither imports it what church is there meant; since, by the true intent of the Act concerning religion, every church professing to believe in God the Father, Son, and Holy Ghost, is accounted Holy Church here.
"2. Because, by the act entitled An Act Concerning Religion, It is provided that no person whatsoever professing to believe in Jesus Christ shall be molested
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THE DAY-STAR.
dent that the quiet disbeliever also was protected. A case can easily be given. But it is enough for the reader to look at that section of the law, which forbids the application, in a reproachful sense, to "any person or persons whatsoever," of any " name or term " " relating to matter of reli- gion."
The Act, it will be observed, covers a very broad ground. It is true, it did not embrace every class of subsequent religionists. A Jew, without peril to his life, could not call the Saviour of the world a " magician," or a "necromancer. A Quaker, under the order of the government, was required to take off his hat in court, or go immediately to the whipping-post. The Mormon, who dignifies polygamy with the .notion of a sacrament, who disseminates the gospel in the propagation of his
for or in respect of his or her religion, or the free exercise thereof. And undoubtedly preaching and teaching is the free exercise of every churchman's religion. And upon this I crave judgment.
" To the first and second point in the information put against the said Francis Fitzherbert the' demurrer is allowed. The third point depends upon the two first, and is dis-allowed.
"The opinion of the Board is, that it is neither rebellion nor mutiny to utter such words as alleged in the 4th article, if it were proved." See Lib. S. 1658 to 1602, Judgments, p. 1062.
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CASE OF THE QUAKERS.
species, would not have been allowed, we may suppose, to marry more than one woman. But as early as 1659, a well-known non-believer in the Trinity lived here, transacted his business, and instituted without objection his suits in the civil courts ; nor were. the Jewish disabilities entirely removed, till a period long after the American Revolution; and this feature of the law, all things considered, was not more of a reproach to the legislators of 1649 than the constitution of the State to the reformers of 1774. We have no evidence, indeed, that any Quakers were in Maryland, at the passage of the law; and when they came, their case was misunderstood; for the dislike toward them arose from their supposed want of respect for the constituted authorities, and their refusal to take the oath of submission. A constitutional difficulty might also readily occur to any one, as it certainly did to the proprietary, who was bound by the charter to maintain the funda- mental principles of Anglo-Saxon law, which had always regarded the instrumentality of the oath in the administration of practical justice, as the cor- ner-stone of a system. But every disposition was
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THE DAY-STAR.
manifested to render them comfortable. And they soon became a flourishing and influential denomi- nation. Notwithstanding the imperfection which ever marks human legislation, it is wonderful to think how far our ancestors went in the march of religious freedom. The earliest policy of Mary- land was in striking contrast with that of every other colony." The toleration, which prevailed from the first, and fifteen years later was formally ratified by the voice of the people, must, therefore, be regarded as the living embodiment of a great idea ; the introduction of a new element into the civilization of Anglo-American humanity ; the beginning of another movement in the progress of the human mind.1
1 Toleration, in the widest sense, or in the most strictly logical acceptation, exists only in a State founded upon naked atheism. The history of the whole of Western Christendom (I speak of Europe), for a period of many centuries, exhibits but the perpetual struggle between the Church and the State, arising from the some- times quiet, but always uniform tendency of the one to absorb the other. The conflict is illustrated in the most striking manner, by glancing at the jurisdiction constantly claimed and denied over the important institution of marriage. The interesting case of the
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LUMBROZO, THE JEW.
Rev. Wm. Wilkinson (for Mormonism I am unwilling to touch), will be given from our records, in a further part of this volume.
With regard to the Quakers, it may be proper to add, that, while I do not assert there never was a practical case of whipping, I can sincerely say I have never met with any. I am clearly of the opinion that some of our writers have indulged in very great exaggeration. As early as Fox's visit, many Quakers were here. The speaker of the Assembly attended his meeting. Judges of the county courts, wives of privy counsellors, and a large number of the most prominent colonists became his disciples. The general spirit of the proprietary's government cannot be mistaken. No principle in history is better settled. And I cannot, therefore, so easily or readily regard the case of the Quakers in the light of a practical anomaly. See Fox's Journal-a very interesting book- and the next chapter of this volume.
In the text, I have referred to Dr. Lumbrozo, the well-known Jew (for he seems to have observed no secrecy), who lived some time in Maryland, without rebuke from the government. in the usual exercise of his calling, and of the right to institute actions in the Civil Court. We cannot doubt he was also allowed the quiet enjoyment of his religion. But he was accused of blas- phemy ; and although he fortunately escaped a trial, in consc- quence of the pardon accompanying the proclamation in favor of Richard, the son of the lord protector-a proclamation which was issued but a few days after the accusation-the case is one which was instituted under the Act of 1649; and I, therefore, give the proceeding as it occurs upon the Records of the Provincial Court, Lib. S. 1658 to 1662, Judgments, pp. 159-160.
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THE DAY-STAR.
" At a Provincial Court, held at St. Mary's on Wednesday, this. 23d February, 1658.
"Present-Josias Fendail, Esq., Governor ; Philip Calvert, Esq., Secretary ; Mr. Robert Clarke ; Mr. Baker Brooke ; Dr. Luke Barber.
" Was called afure the Board, Jacob Lumbrozo, and charged by his Lordship's Attorney for uttering words of blasphemy against our Blessed Saviour, Jesus Christ.
"The deposition of John Hoffsett, aged 44 years, or thereabouts, sayeth this 19th day of February, 1658 :--
"That, about half a year since, this deponent being at ye house of Mr. Richard Preston, and there meeting with Jacob Lumbrozo, he, this deponent. and the said Lumbrozo falling into discourse concerning our Blessed Saviour, Christ, his resurrection, telling ye said Lumbrozo that he was more than man, as did appear by Lis resurrection. To which the said Lumbrozo answered, that his disciples stole him away. Then this deponent replied, yt no man ever did such miracles as he. To which ye said Lumbrozo answered, that such works might be done by necromancy or sorcery, or words to that purpose. And this deponent replied to ye said Lumbrozo, yt he supposed yt ye said Lumbrozo took Christ to be a necromancer. To which ye said Lumbrozo answered nothing, but laughed. And further this deponent sayeth not.
" Jurat die et anno supradict. cor. me,
" HENRY COURSEY.
"I, Richard Preston, jr., do testify yt, about June or July last past, coming from Thonias Thomas's, in company with Josias Cole and ye Jew Doctor, known by ye name of Jacob Lumbrozo, the said Josias Cole asked ye said Lumbrozo, whether ye Jews did look for a Messias ? And ye said Lumbrozo answered, yes. Then ye said Cole asked him, what He was that was crucified at Jerusalem ? And ye said Lumbrozo answered, He was a man. Then ye said Cole asked him, how He did do all His miracles? And ye said Lumbrozo answered, He did them by ye Art Magic. Then ye sail Cole asked him, how His disciples did do ye same miracles, after Ile was crucified ? And ye said Lumbrozo answered, that He taught them Ilis art. And further saith not.
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LUMBROZO.
" This was declared before me, as in the presence of God, that it is true, this 21st of February, 1658. HENRY COURSEY.
" The said Lumbrozo saith, that. he had some talk with those persons, and willed by them to declare his opinion, and by his profession, a Jew, he answered to some particular demands then urged. And as to that of miracles done by art magic, he declared what remains written concerning Moses and ye Magi- cians of Egypt. But said not anything scoffingly, or in derogation of Ilim Christians acknowledge for their Messias.
" It is ordered, that ye said Lumbrozo remain in ye Sheriff's custody, until he put in security, body for body, to make. answer to what shall be laid to his charge concerning those blasphemous words and speeches, at ye next Provin- cial Court; and yt the persons be then present to testify, viva voce, in Court.
" Mittimus .- To ye Sheriff of St. Mary's County, according to the order Supradict."
N.B .- The reader will observe, that Ri. Preston, a Quaker, simply declares.
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THE DAY-STAR.
CHAPTER VIII.
The influence of the Legislation of 1649 upon the Colonization of Maryland-Arrival of Families-Foundation of Settle- ments. Erection of Counties.
THE liberal policy of Maryland could not fail to attract the attention of the other Anglo-American colonies. The Puritans upon the James and upon the Elizabeth, having, in consequence of their non- conformity, been ordered to leave Virginia, soon. found an asylum here, and during the latter part of 1649, and the beginning of 1650, founded (under the patronage, it is supposed, of Governor Stone) several settlements at Greenberry's Point, and upon the Severn1-the whole body consisting of
1 It is generally believed that the first settlement of the Puri- tans was at the point where the city of Annapolis stands; and that the foundation of that city was laid almost immediately after their arrival. I can only say, there is no recorded evidence within my knowledge, of the facts. The earliest settlement which I can discover (the one of 1649) was at Greenberry's Point, a
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GREENBERRY'S POINT AND THE SEVERN.
more than one hundred persons, distinguished not less for their intelligence than for the fervor of their religious feelings, and for the stubbornness of their wills-destined, also, at no distant period, to take a very conspicuous part in the affairs of the province. One of them was the ancestor of the extinct Bennetts of Bennett's Point in Queen Anne's ;1 the descent of the Lloyds of Wye House, is derived from a second;' and a third was the peninsula of the Chesapeake, a little below the mouth of the Severn. My belief is, that Annapolis was not founded till many years later. But at Greenberry's Point a town was laid out the very first year of the settlement there; and the tract running down to the point, and now in the possession of Capt. Taylor, was originally called Town Neck, as the history of the land-title will clearly show. See also my Historical Letter in the summer of 1854, to Mr. Ch. Justice Le Grand, upon the files of the Baltimore American, of the New York Churchman, and, if I mistake not, of other newspapers.
' Richard, whose tombstone is still preserved at Bennett's Point, the largest landholder of the province, and to whom tradition bas uniformly given the prefix of "Squire," was the grandson of the Richard, who, soon after the settlement at Greenberry's Point, returned to Virginia, and became the governor of that colony.
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