TOLERATION ACTS OF 1639 AND 1649, MARYLAND

These legal enactments played a major role in the story of religious liberty in America. The 1639 act passed beyond even the contributions of George and Cecil calvert, the Catholic founders of maryland, in the breadth of its provision for religious toleration.

Acts of 1639. The Maryland ordinance of 1639, which included the Toleration Act of that year, grew out of a controversy between Cecil Calvert, the second Lord Baltimore and proprietor of Maryland, and the Maryland assembly. The Maryland Charter, fashioned by his father, George, had been a preamble that looked to a more precise set of laws to govern affairs in the colony. The ordinance of 1639, with its toleration and other acts, marked the first complete step in this direction, the assembly prevailing over Lord Baltimore in taking it.

Very early in the planning and settling of Maryland the proprietor and his assemblymen interpreted the charter to mean that they were free from the laws that governed Englishmen through Parliament. Among these were statute laws, many of which were hostile to Catholics and others dissenting from the Established Church of England because they required profession of belief and Anglican ritual. By what were known as the Privileges of Durham, awarded directly by the king to the colonizing proprietor himself, Maryland was freed from such statute laws and was bound only by those that the colonial assembly specifically accepted. Yet as Englishmen they must be under certain other laws that the colonists together with the proprietor judged suitable.

There was disagreement over what these laws should be and who should initiate them. Lord Baltimore sent a code of laws to the colony when he learned that the assembly had independently initiated legislation for basic laws. Efforts at compromise in the Baltimore code failed. The assembly finally formulated its own ordinance of 1639, in which were found acts of toleration.

Holy Church, said one such act, "shall have all her rights and liberties." Although sectarianism divided the Church at this time, the term in current language included all of its divisions as being of the "Christian religion" to which the charter referred. Toleration would thus be assured to the protected Church or Christian religion and its adherents.

Another ordinance passage carried toleration further. An Act for the Rights of the People guaranteed that "the inhabitants of this province shall have all the rights and liberties according to the Great Charter." In the contemporary discussion by Catholics and other dissenters of the early 17th century the Englishman's liberties included freedom of religion regardless of any lack of connection with a church. Non-Christians could thus hope for equality before the law. Reference to being a Christian had been proposed by Baltimore, but was eliminated from the act.

One further guarantee was given to religious freedom by the assembly. It refused to legislate against blasphemy, sorcery, sacrilege, etc., though such laws were common practice at this time, particularly in New England. Baltimore's code had proposed similar laws, but they were rejected by the assembly's committee. The state was thus confined in the exercise of its authority in a spirit of separation of civil and religious authorities.

All these meanings of the Toleration Acts of 1639 are clear from sources other than the enactment itself. Comparison with the rejected code of Baltimore substantiates the intent of the assemblymen. They were dominantly Catholic, and many were of the educated gentry. Their thinking on Church-State relationship is to be understood against the distinctive theoretical development among English Catholics rather than among Spaniards. The oath controversy with James I and a remonstrance of grievances sent by the laity to Rome reveal that English Catholics were rejecting the prevailing theory of a confessional state. A pamphlet, Objections Answered, applied these emerging concepts of religious freedom and separation of Church and State specifically to the Maryland colonial enterprise in justification of its liberal practices.

It appears that the assemblymen had greater liberty than Cecil Calvert in pursuing this ideal. Lord Baltimore was somewhat confined to the legal formulations of England in his code. In the 1640s and 1650s, he was in conflict with the Puritans both in Maryland and in England. It was out of this situation that he tried to salvage at least a minimum of the freedom established before this time. The Toleration Act of 1649 was the chief outcome of his efforts in this situation.

Act of 1649. Contrary to what is generally written, this legislation was not the high point in religious liberty in Maryland but a decline from the acts of 1639. It was likewise less representative of the tradition behind the founding of the colony and its first legislative enactments. It clearly asserted for the first time in Maryland the practice of profession of belief as a condition for enjoying the rights of Englishmen and freedom of conscience. "Whatsoever person," it stated in Puritan fashion, "shall from henceforth … deny Our Saviour Jesus Christ to be the Son of God … shall be punished …" This would seem to bind those who publicly attacked Christian orthodoxy. The vast majority, who were Trinitarian believers, were thus assured that none of them would "from henceforth be in any ways troubled … for or in respect of his or her religion…."

The act of 1649 achieved toleration among Christian sects in a way generally unknown in Western civilization except in Rhode Island at this time and Pennsylvania somewhat later. It attained its immediate defensive purpose since it protected Catholics and Protestants who had dissented from the Puritan creed behind Cromwell's Commonwealth. Certain measures passed by the Puritan majority of the Maryland assembly after 1650 were nullified by appeal to the Toleration Act of 1649.

When the Puritan regime fell, however, there was a return to the broader liberty found in the 1639 toleration act. A Jew, Jacob Lumbrozo, was accorded legal protection of law and served in public office. A Catholic priest successfully defended his right to public preaching by appeal to the 1639 ordinance providing for the freedom of the Church. Even more than 100 years after its passage, Marylanders disfranchised for their religious beliefs appealed to the Toleration Act of 1639. By 1700, however, the era of its influence had passed. The Church of England had been established in Maryland, and the colony was put under the statute laws of Parliament.

See Also: church and state in the u.s. legal history, 1.

Bibliography: m. p. andrews, "Separation of Church and State in Maryland," American Catholic Historical Review 21 (Washington 1935–36) 164-176. t. o. hanley, Their Rights and Liberties: The Beginnings of Religious and Political Freedom in Maryland (Westminster, MD 1959); "Church-State Concepts in the Maryland Ordinance of 1639," Church History 26 (Philadelphia 1957) 325–341. Archives of Maryland, ed. w. h. browne et al. (Baltimore 1883–). Calvert Papers, 3 v. (Maryland Historical Society, Fund Publication 28, 34–35; Baltimore 1889–99).

[t. o. hanley]