“I will not by myself nor any person, directly or indirectly, trouble, molest, or discountenance any person whatsoever in said province professing to believe in Jesus Christ, for or in respect to his or her religion, nor in his or her free exercise thereof.”
We cannot determine when this oath began to be used. Bancroft places it between 1636 and 1639. Chalmers, Dr. Hawks, and others give the time as between 1637 and 1657. It is certain that this oath was prescribed prior to the passage of the Toleration Act; for Governor Stone and the councillors took the oath in 1648, and there is reason to believe that it was in use at a much earlier period.
Referring to the period anterior to the passage of the Toleration Act, Bancroft says: “Maryland at that day was unsurpassed for happiness and liberty. Conscience was without restraint.”[124] Mr. Davis, in reference to this subject, writes: “The toleration which prevailed from the first, and for fifteen years later, was formally ratified by the voice of the people” (in 1649).
Mr. Gladstone’s view of the subject is evidently superficial; it relates exclusively to the passage of the Toleration Act, and was conceived and published without the knowledge of the fact, which we have demonstrated, that the toleration for which the Catholics of Maryland have been so much praised had been practised for fifteen years before the passage of that act. Surely, there can be no rival claim set forth in behalf of Protestants for the period we have mentioned. Mr. Gladstone sets up his claim for the Protestants under that act. We cannot admit the justice or truth of the pretension. Let us examine it. This law enacted that “no one professing to believe in Jesus Christ shall be troubled, molested, or discountenanced for his religion, or the free exercise thereof, nor compelled to the belief or exercise of any other religion against his consent.” Now here, too, the claim set up by Mr. Gladstone, and by the authors of the pamphlets he quotes, is met by stern facts.
In the first place, the Toleration Act of 1649 was the work of a Catholic. It was prepared in England by Lord Baltimore himself, and sent over to the Assembly with other proposed laws for their action. This fact is related by nearly all writers on Maryland history, including those consulted by Mr. Gladstone, except the writer of Maryland not a Roman Catholic Colony, who does not refer to the subject, except to claim that it was but the echo of a previous and similar order of the English House of Commons in 1645 and of a statute passed by it in 1647. The last-named writer even intimates that the Rev. Thomas Harrison, the former pastor of the Puritans at Providence, afterward Annapolis, in Maryland, suggested the whole matter to Lord Baltimore. We might even admit this pretension without impairing the Catholic claim. It does not destroy the credit due to the Catholics of Maryland in passing the Toleration Act to show that others, even Puritans, entertained in one or two instances similar views and enacted similar measures. We know that the Puritans in England were proscriptive, and that in New England they did not practise the toleration of Maryland. Even if Lord Baltimore had the measure suggested to him by the Puritan Harrison, the act itself, when adopted by him and put in practice, is still his act and that of the Assembly which passed it. It remains their free and voluntary performance. The merit which attaches to the good deeds of men is not destroyed by having been suggested by others. A Puritan might even share in the act without appropriating the whole credit to himself. But whatever merit is claimed for the Puritans in these measures—which we cannot perceive—is lost by their subsequent conduct. They overturned the government of Lord Baltimore in Maryland, and under their ascendency Catholics were persecuted in the very home of liberty to which Catholics had invited the Puritans. But of the existence of the English toleration acts mentioned by the writer referred to and by Mr. Gladstone, we have been supplied with no proof. That the Puritan Harrison suggested the measure to Lord Baltimore is hinted at, not roundly asserted, certainly not sustained by proof.
But public facts give the negative to these pretensions. The Toleration Act of 1649 was the immediate echo of the actual toleration which, under the injunctions of Lord Baltimore, the proclamation of Governor Calvert, and the uniform practice of the colonists, had long become the common law of the colony. Why seek, in the turbulent and confused proceedings of the Long Parliament, a model or example for the Maryland law, when such exemplar is supplied nearer home by the colony itself from its first inception? To the people of Maryland, in 1649, the Toleration Act was nothing new; it was readily and unanimously received; it produced no change in the constitution of the province. Toleration was not the law or the practice of that day, either in England or her colonies; the echo was too remote and too readily drowned by the din of persecution and of strife.
But the Maryland Toleration Act contains intrinsic evidence of a purely Catholic origin. The clause enforcing the honor and respect due to “the blessed Virgin Mary, the Mother of our Saviour,” which we have already quoted, gives a Catholic flavor to the whole statute, and excludes the theory of parliamentary or puritanical influence in originating the measure. The claim thus set up is also against the concurrent voice of history, which, with great accord, gives the authorship of the law to Lord Baltimore, who, as he had enjoined and enforced its provisions on the colony for fifteen years, needed no assistance in reducing them to the form of a statute, which we are informed he did.
But who were the lawgivers of 1649, and what was their religion?
By the charter the law-making power was vested in Lord Baltimore and the Assembly. It was for some years a matter of contest between them which possessed the right to initiate laws. The lord proprietary, however, finally conceded this privilege to the Assembly. It was not uncommon for the Assembly to reject the laws first sent over by the lord proprietary, and afterwards to bring them forward themselves and pass them. But in 1648, when Governor Stone was appointed, the Toleration Act was among the measures sent by Lord Baltimore, for the action of the Assembly. The government, then, consisted of Cecilius, Lord Baltimore, a Catholic, without whose sanction no law could be enacted, and whose signature to the measure in question was given the following year. The journal of the Maryland legislature was lost or destroyed, but fortunately a fragment of it is preserved, consisting of a report from the financial committee of the Assembly, and the action of that body on the bill of charges. With this document, and the aid of the historical facts recorded by Bozman and other historians, we are enabled to ascertain the names of the members of the Assembly in 1649.
Gov. Stone was lieutenant-governor and president of the council, which was composed of Thomas Green, John Price, John Pile, and Robert Vaughan, commissioned by the lord proprietary; and the remaining councillors were Robert Clarke, surveyor-general, and Thomas Hatton, secretary of the colony, ex-officio members of the council. The other members of the Assembly were the representatives of the freemen, or burgesses, as follows: Cuthbert Fenwick, Philip Conner, William Bretton, Richard Browne, George Manners, Richard Banks, John Maunsell, Thomas Thornborough, and Walter Peake, nine in number. The governor, councillors, and burgesses made sixteen in all; but as Messrs. Pile and Hatton, one Catholic and one Protestant, were absent, the votes actually cast were fourteen. On the memorable occasion in question the councillors and burgesses sat in one “house,” and as such passed the Toleration Act. Of the fourteen thus voting, Messrs. Green, Clarke, Fenwick, Bretton, Manners, Maunsell, Peake, and Thornborough were Catholics, and Messrs. Stone, Price, Vaughan, Conner, Banks, and Browne were Protestants. The Catholics were eight to six Protestants.