Two Acts of Toleration: 1649 and 1826

medal cast for Cecil Calvert, 1632 ON APRIL 2, 1649, at St. Mary's City, then the capital of Maryland, freemen gathered for a meeting of the General Assembly in the St. Mary's room of Governor Stone's house, the foundations of which can seen today at Historic St. Mary's City. Acting as representatives of the people, they were to consider sixteen bills for possible approval as laws of the province. Since many of the contemporary records have been lost, little is known today of all that happened in that session of the Assembly. Certain it is, however, that nineteen days later, on April 21, the freemen voted twelve of the proposed bills into law. Among them was An Act Concerning Religion.

From time to time, in the long struggle of the American people toward complete religious liberty, several colonies - especially Rhode Island and Pennsylvania - made notable contributions. Maryland's gift to the common cause was this Act Concerning Religion-- one of the pioneer statutes passed by the legislative body of an organized colonial government to guarantee any degree of religious liberty. Specifically, the bill, now usually referred to as the Toleration Act, granted freedom of conscience to all Christians.

Religious toleration was not new to the men and women of Maryland. Planned by George Calvert, first Lord Baltimore, and actually founded by his son Cecil, the province was primarily a haven for persecuted Catholics; yet its founders had welcomed, and even sought, Protestants as settlers. Furthermore, back in November, 1633, in the first paragraph of his instructions to the governor and commissioners, the second Lord Baltimore had warned his Catholic and Protestant colonists, then leaving for the New World, that they were not to give offense to one another in matters of religion. This forbearance, he had added, they were to observe on land as well as at sea. The records remaining to us indicate that for fifteen years the settlers had obeyed these directions with a unanimity surprising for the times.

Once the Marylanders had landed, Roman Catholics and Protestants had shared a single chapel building at St. Mary's. The first religious dispute, so far as we know, had occurred in 1638, when one William Lewis, a Catholic, had been charged by his Protestant servants with proselytizing by force of his authority, thus provoking a quarrel over religion. Lewis, tried by a court predominantly Catholic, had been found guilty and fined 500 pounds of tobacco. Similarly, in 1641, a Thomas Gerard, also Catholic, had been charged with taking the keys of the chapel from Protestants and removing their books from the building. Again, a Catholic had been declared guilty of interfering in the religion of Protestants and, with a nice irony, the court had decreed that Gerard's fine of 500 pounds of tobacco be held for the support of the first Protestant minister who should arrive in the colony.

Moreover, when William Stone, a Protestant, had become Lord Baltimore's governor in 1648, he had been required to state on oath that he would neither molest nor discountenance any person professing belief in Jesus Christ. Finally, there had been a drawn-out dispute between Lord Baltimore and the Jesuit Order. Priests in the colony had claimed the right to acquire land from the Indians and to hold it more or less independently of the Lord Proprietary under conditions similar to those prevailing in the Catholic countries of Europe. Cecil Calvert had disagreed with this claim. He had carried his case to Rome, where the General of the Society of Jesus had forbidden the priests to acquire land in Maryland without the express approval of His Lordship. Clearly, between 1634 and 1649, a large measure of freedom of conscience had become a part of the thinking and habits of Marylanders, and, clearly, Cecil Calvert had endeavored to separate church and state in the colony.

Then, in 1649, the freemen had approved An Act Concerning Religion part of which stated that, "no person or persons whatsoever within this province . . . professing to believe in Jesus Christ shall from henceforth be in any ways troubled, molested, or discountenanced for or in respect of his or her religion, nor in the free exercise thereof...." This Act of Religious Toleration, like Lord Baltimore's policy of separating church and state, was far ahead of its time.

These facts are as certain as can be from the records still extant. Yet they leave questions unanswered. If religious toleration had been so widely practiced, why the necessity in 1649 for writing it into law? Why was such a law passed in Maryland rather than in some other colony? Has it any meaning for us today?

In discussing such questions as these, historians have concentrated their attention almost exclusively on the religious phases of the Act and, because of the loss of contemporary records, have been forced into conjecture. The discussion that follows is as much surmise as any other commentator's interpretation yet it presents a point of view, previously ignored, which is both plausible and meaningful. First, however, we must provide a background to the passage of the Act.

The world, as many Englishmen saw it in 1649, had been turned upside down. Political troubles had resulted in a civil war that had begun in 1642, and had culminated in an act of violence which, to many men, seemed to overturn the structure of society and undo the whole English way of life. On January 30, 1649, Charles I, king of England, had been executed by his own people, a deed that threatened the whole institution of monarchy.

Kings had been killed before in England and in other countries. Prior to 1649, however, such deaths had been brought about by someone who hoped to seize the crown, someone bent upon personal revenge, or someone who felt that the king's rule was too monstrous to be borne any longer. Charles, however, had defied the will of Parliament, had been tried, condemned and beheaded. The king's concept of government had been that the subjects' lives were in the sovereign's hand; the Englishmen who had executed Charles, however, had asserted the principle that, once he undertook to destroy their liberty, the sovereign's life was in the subjects' hands. This was an attack on the idea of absolute monarchy. To many men, it was more than that. It was a social, political, economic, and religious earthquake. These fearful and conservative men sincerely believed that the very foundations of civilization were crumbling.

The fear of these men arose not so much out of the fact that their king had died under the headsman's axe, or from the fact that a certain Puritan, Oliver Cromwell by name, was plainly on his way toward making himself dictator of England. It was rather that a liberal idea of the function - indeed of the very nature - of government was spreading among the English people. The concept of any degree of popular voice in the affairs of state struck dismay in the minds and hearts of many men who believed in law and order. They would have been even more dismayed, perhaps, had they fully realized how nourishing a climate the ideas of English freedom would find as they spread to the New World.

The troubles that had overwhelmed King Charles were no sudden outburst. They had been brewing for at least forty-six years - ever since the death of Elizabeth, the Great Queen, in 1603. Her successor, James I, had wrestled with some of them and, by the time that his son, Charles, had come to the throne, the witches' cauldron was bubbling merrily. Basically, these disturbances were rooted in the prolonged struggle between absolute monarchy and constitutional government; but the unrest had been made more bitter and violent by the injection of religious issues into politics. Willingly or unwillingly, Anglicans, Catholics, Presbyterians, Puritans, Quakers, and others had seen their faiths become inextricably tangled with affairs of state. Not only in England, but throughout Europe in the 17th century, to the infinite damage of both church and state, religion was inseparable from politics.

Among the statesmen surrounding the kings of England through much of this gathering storm was George Calvert, planner of the Maryland colony. Calvert was a remarkable man. He had come to London a simple gentleman of a good, but not particularly prominent, Yorkshire family. At Oxford University, he had shown distinct promise and afterward had gone abroad to perfect his mastery of French, Italian and Spanish. The most powerful man in England at the time was Sir Robert Cecil, chief secretary of state who, so gossip said, was less the king's minister than the king's master. Sir Robert was always on the lookout for bright young men, especially linguists, and young George Calvert pleased him. He made the Yorkshireman one of his private secretaries.

Twenty years of service under the secretary of state and, after Sir Robert's death, directly under the king, had made Calvert into one of the ablest diplomats of his time. In 1625, however, at the height of his career, it became clear that Parliament was determined to disqualify Catholics from any position of trust or profit under the government. Few observers doubted the eventual success of this move. At this moment, Calvert - he was Sir George by now - chose to announce his conversion to the Catholic faith - an act that forever acquits him of any charge of insincerity. This move meant the sacrifice of his political career, since Catholics could not hold public office.  But Calvert did not hesitate; nor during the bitter years that followed did he or his son waver in devotion to their faith. The king, who esteemed him highly, gave Sir George a barony in the Irish peerage since he had estates in Ireland as well as in Yorkshire. He was now Lord Baltimore.

Historians, while frequently praising George Calvert's faithfulness to his religion, have seldom pointed out the significance which his change of faith may have had upon his philosophy of government. When he had changed his church, he had not changed his party. As a Protestant, he had been a king's man, and as a Catholic he had remained in the king's party, although retired from public office. Plainly, then, there was already in Calvert's mind a sharp and complete distinction between religion and politics. A willingness to compromise had no place in Calvert's faith. He had separated church and state in his thinking long before he and his son attempted to separate them in his colony. This was the man who, in times turbulent with politico-religious strife, asked the king for a grant of land in the wilderness of America where he might establish a sanctuary for his persecuted fellow Catholics. The request involved delicate considerations. Already the king's enemies were accusing him of currying favor with the Catholic king of Spain, to the detriment of English interests. Any favor that Charles might show to Catholics, even English Catholics, would be seized upon with delight by his enemies, and held up as proof of their king's treason. How, then, could he, even with the best will in the world, grant his friend Baltimore's request without putting weapons into the hands of his foes?

George Calvert found a way. He had been well trained by Sir Robert Cecil, ablest English diplomat of the age. Lord Baltimore brought to the king a charter for his new colony modeled, not on the charter of Virginia, nor on that of Massachusetts - the two English colonies already established - but on that of the Palatinate of Durham, a survival from the Middle Ages. That charter had given the Bishop of Durham practically royal power over his city. Aside from setting forth the metes and bounds of the grant, Calvert scarcely altered the wording of the old charter, except to write in "Maryland" instead of "Durham" and "Lord Proprietary" for "Bishop." Thus, if the king's enemies challenged his charter, he could assert that it was nothing new, only a revival of an old English political system.

Calvert made certain, too, that his enemies would have no cause to attack his charter on the basis of religion. By implication, the document stated that the same pains and penalties prevailing in England would be imposed upon the Lord Proprietary if ever he should allow prejudice to "God's Holy and True Christian Religion" - a statement sufficiently broad to satisfy wide interpretation. As a practical man, Lord Baltimore mentioned no specific faith in the charter; but the fact that he was a Catholic was an immediate and positive guarantee that his own religionists would suffer no persecution. By virtue, then, of the vagueness of the charter and its failure to mention particular faiths, a policy of religious freedom was to be expected in Maryland, so long as the Calvert family controlled the province.

After the charter had been approved, but before the Great Seal could be applied to make it legal, George Calvert died. When it was issued in 1632, it bore not his name, but that of his son, Cecil Calvert, second Baron of Baltimore.  Even though Cecil Calvert was not the creative genius his father was, he understood the first baron's ideas thoroughly and applied them faithfully with a skill that George himself could not have bettered, and perhaps could not have matched.

The purpose of the vague religious clause in the charter he perceived with the utmost clarity. It was to prevent a repetition in the colony of the unhappy religious and political troubles prevalent in England. Accordingly, he made every effort to impress upon his settlers the necessity for avoiding religious controversy.

The enforcement of the charter in Maryland was entrusted to Lord Baltimore's brother, Leonard, named as governor; but since Leonard was still a young man, he was to be advised by two older commissioners. Particularly to these three, then, did the second Lord Baltimore emphasize his instructions. In his very first paragraph, he wrote:

His Lordship requires his said Governor and Commissioners that in their voyage to Mary Land they be very careful to preserve unity and peace among all the passengers on shipboard, and that they suffer no scandal nor offence to be given to any of the Protestants, whereby any just complaint may hereafter be made by them in Virginia or in England, and that for that end, they cause all acts of Roman Catholic religion to be done as privately as may be, and that they instruct all the Roman Catholics to be silent upon all occasions of discourse concerning matters of religion; and that the said Governor and Commissioners treat the Protestants with as much mildness and favor as justice will permit. And this [is] to be observed at land as well as at sea.
In Maryland, the broad religious interpretation of the charter, immeasurably strengthened and given purpose by this first paragraph of the instructions, was enforced in a spirit of complete fairness from 1634 to 1649.

During all of these years, Lord Baltimore had been compelled to remain in England where his charter was under frequent attack in Parliament and the courts by his own enemies, and the king's. Protestants in Maryland, these enemies claimed, would never be safe under a Catholic lord.

The second Lord Baltimore proved them wrong. As has been shown at the beginning of this discussion, religious toleration did prevail in Maryland, and in the remaining records of the time, there is even a hint - tantalizing to the historian - of a lost "Toleration Act" having been passed as early as 1635. There is no doubt, therefore, that the principle of religious toleration had not only been implied in the charter - the organic law of Maryland - but had been faithfully and vigorously enforced by the courts, the governor and the Lord Proprietary. The enforcement, however, was by edict of the Lord Proprietary; the people had shown their approval by their active cooperation. While they had enjoyed the effects of toleration, of their own free will they had neither debated it nor voted upon it in the Assembly.

Meanwhile, in England, the politico-religious quarrel between Anglican king and Puritan parliament had gone from bad to worse. The royal power had been attacked in civil war and, on the field of battle, the king had been decisively defeated. When, on January 30, 1649, Charles I went to the block, Lord Baltimore's whole political world came crashing down. He had been a member of the king's party - but now the king was dead. Calvert's royal protection was shattered. The authority of his charter was weakened. Perhaps, even, Cromwell and the Puritan parliament would take Maryland from him. No longer were Baltimore's edicts strong enough to support the government which he had imposed upon Maryland. The consent of the people of the colony had become a necessity.

Accordingly, in 1649 Cecil Calvert submitted to the General Assembly a series of proposals, which, so he wrote in an accompanying letter, had been suggested to him - by whom we do not know. The proposed sixteen laws, however, covered a range of subjects so wide that they may well have been designed for the primary purpose of strengthening his tottering position as Lord Proprietary of Maryland. Among them was an act for punishing counterfeiters of the seal of the province, and another to punish offenders against the peace and safety of the colony. But most important of all - since politics and religion were closely interwoven - was An Act Concerning Religion.

The Maryland Assembly, whose membership by this time was about half Protestant, considered the proposals. Some of its more conservative members, no doubt, were as full of anxiety and foreboding as was Lord Baltimore back in England; to them the old order seemed to be collapsing before the strange idea of a government more responsive to the freemen's wishes. But other members were feeling their power to create a government by the consent of the governed, and they showed it. They refused to accept His Lordship's proposals en bloc; four of them they rejected, and some of the remaining twelve they proceeded to rewrite. In the end, on April 21, they endorsed the bulk of them as substantially sensible, just and right.

The first of those approved was An Act Concerning Religion. From internal evidence it is clear that this was one of the bills partially rewritten. It begins with a terrific and lengthy blast against profane swearers, blasphemers, Sabbath breakers, and others of the ungodly. This section had nothing to do with the main purpose of the act, and it is reasonably certain that Baltimore did not write it. It may even have been camouflage to obscure the latter section which granted toleration. However, to assume, as some have done, that the first section was a repudiation of the spirit of tolerance constitutes an unwarranted removal of the act from its historical setting. Severe laws against blasphemy and similar crimes had been on the statute books of England and other European countries for generations.

In any event, the act was remarkably comprehensive. Its provision that no man should "be in any ways troubled, molested, or discountenanced for or in respect of his or her religion " was tolerance. But it went further. In a previous clause, it imposed fines and imprisonment on anyone who should in a reproachful manner or way apply certain terms to other persons to disparage their religion. This went beyond mere tolerance, and looked toward fellowship, understanding and complete freedom of conscience.

Critics have seen in the law's apparent limitation of tolerance to Christians a stain of anti-Semitism which invalidates the claim that the act was one of toleration. But in fact Jews were potentially included by the provisions of the act and the record is bare of any successful prosecution of Jews. On the contrary, a Mathias de Sousa, a moor who may have been a Portuguese Jew, was serving in the Assembly in 1641, and, a few years after passage of the Act, a religious charge against Dr. Jacob Lumbrozo came to nothing.

True, toleration in Maryland temporarily was struck down only five years after its enactment. By 1654, the conflict in England was over, but postwar hysteria flooded the colony like a tidal wave. Cromwell was seated firmly in England's saddle; only death would dislodge him. Zealous Maryland Puritans, caught in the emotional frenzy, swept away the Act of Toleration and put Catholics, Jews, Quakers, Atheists, and all dissenters under disabilities as oppressive as any imposed in America.

Although these men wiped the law off the statute books, they could not erase its spirit from the minds of men. As the hysteria subsided, and the freemen returned to the sober and judicious mood in which they had approved the law, they realized that in 1649 they had acted well. So in 1661, after Cromwell had died and the monarchy had been restored, Marylanders promptly repealed all the laws of the Puritan regime, thereby putting the Act of Toleration once more in force. It remained the law for thirty-one years, and then was replaced, not by the choice of the Maryland freemen, but by the English government which, under William and Mary, sought to establish the Anglican Church in all parts of the realm, including Maryland. As we see it after three hundred years, perhaps the most important line in the statute is written at the bottom of the act: "The freemen have assented."

Thomas Hatton, clerk of the Assembly, doubtless thought nothing of those four words. To him, they merely constituted the usual formula that he wrote on all acts passed by the Assembly. But the freemen had assented, to quote the law's own words, "the better to preserve mutual love and amity amongst the inhabitants." It was a law made by civilized men who believed that a decent show of respect for one another is one of the duties of freemen and one of the bulwarks of a free state.

In enacting this legislation, Maryland was among the world's leaders. It is an honor of which she cannot be deprived, and a great honor when one considers what followed. The step taken at St. Mary's was an important part of the movement toward religious freedom which reached its national climax in 1791 with the addition of the First Amendment to the Constitution of the United States, which says, in part, that, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The first amendment, in separating church and state, made profitless a war using religion as a pretext, and the United States of America remains today one of the few large nations in the history of the world that, from its foundation, has never been torn by the conflict of religious strife. Yet, what was made national policy in 1791 would remain unattainable at the state level in Maryland for several decades longer. Not until the Constitution of 1867 would religion cease to be a test for public office holding, although provisions were made to accommodate non-Christians as officeholders in 1825.

Perhaps another point worth remembering is that the Maryland Assemblymen of 1649 are not recalled as brilliant and outstanding individuals whose names still live in great accomplishment. They apparently contained no Hamilton, no Madison, no Franklin. Superficially, this fact may seem the reverse of memorable. But if one examines it carefully, there is boundless encouragement and hope in the anonymity of citizen legislators who collectively use their talents to the benefit of all.

What ordinary citizens have done, ordinary citizens can do again. When the freemen assented to the Toleration Act of 1649, they set a reasonable course that a new nation 140 years later would begin to follow toward lasting peace and tolerance of each other. They did so by working boldly and sincerely for the common good with whatever talents they had. The years that followed taught us that each generation of citizens and citizen legislators must return to do the same. The work is never finished, as Thomas Kennedy, a delegate from Washington County, demonstrated anew in the first decades of the 19th century, as he struggled to broaden toleration in politics and in government.

profile of Thomas Kennedy

Despite the experience of nearly forty years of toleration under the 1649 An Act Concerning Religion, the framers of the Maryland Constitution of 1776 provided only that "all persons professing the Christian religion are equally entitled to protection in their religious liberty." This exclusion of non-Christians from a Constitutional guarantee of freedom of conscience was extended in Article 35: "No other test or qualification ought to be required on admission to any office of trust or profit than such oath of support and fidelity to the State... and a declaration of belief in Christian religion."

The exclusion of all who would not profess the Christian faith from positions of public trust in the state of Maryland continued until Thomas Kennedy, a man of Scottish Presbyterian origins, took up the fight "to consider the justice and expediency of placing the Jewish inhabitants on equal footing with the Christians."

Thomas Kennedy was first elected to the House of Delegates in 1817, representing Hagerstown. From the very beginning of his legislative career, he demonstrated an interest in social issues. In the words of his granddaughter, he "took an active part in politics largely...because of his interest in religious freedom." Because of this interest, he was, in 1818, placed on a committee in the House that was to consider removing the "political disability of the Jews."

At the time, there were only about 150 Jews in Maryland. Thomas Kennedy had never even met one, but he was outraged by the injustice of excluding an entire group of people because of their religious beliefs. For him, religion was "a question which rests, or ought to rest, between man and his Creator alone." The bill reported out of the committee in January 1819 was entitled "An Act to extend to the sect of people professing the Jewish religion the same rights and privileges that are enjoyed by Christians." When it was defeated, Kennedy pledged himself to renew the fight. The following year, Kennedy reintroduced the bill and it was defeated again by a wide margin.

These efforts to secure religious liberty for the Jews brought him virulent attacks as "an enemy of Christianity" and a "Judas Iscariot" and, in the election of 1823, Kennedy was defeated by Benjamin Galloway, who had spoken out strongly against the "Jew Bill." Even while out of office, Kennedy declared his intention to continue the fight: "although exiled at home, I shall continue to battle for the measure, aye, until my last drop of blood."

In 1825, Kennedy ran for the House of Delegates as an independent and was elected. By this time, public and press opinion in the state had turned in favor of the measure and, in 1826, the bill became law. A few months later, two Jews were elected to the Baltimore City Council. Having fully accomplished what he had set out to do some eight years earlier, Thomas Kennedy returned to Hagerstown where he put his long interest in writing to use by establishing the Hagerstown Mail. His fellow citizens again prevailed upon him to represent them in the General Assembly, and he was elected to the state Senate to serve out the term of a member who had died. He sat in the Senate from 1826 to 1831 but found that he preferred the Lower House and returned to that body in the next election. An epidemic of asiatic cholera claimed Thomas Kennedy's life in October 1832.

monument to Thomas KennedyThe bill that Thomas Kennedy helped to pass extended political rights to Jews, but it still required that an officeholder profess belief in a "future state of rewards and punishments." This requirement was retained in the Maryland Constitution of 1851 and was not dropped until the present Maryland Constitution was adopted in 1867.

In 1995, the Speaker of the House of Delegates, Casper R. Taylor Jr., established the Speaker's Society for all past and present members of the House of Delegates. At its inaugural meeting, on March 22, 1995, the Society presented the first annual Thomas Kennedy Award. This award is given each year to a member of the Society, in recognition of his or her outstanding contribution to the democratic process and to extending the ground of public confidence in a government of the people, by the people, and for the people, consisting of citizen legislators who could and can make a difference.
One who loved his fellow man. --Inscription on Thomas Kennedy's burial monument, Hagerstown, Maryland. This monument was erected in 1918 by a few Jewish citizens in recognition of services rendered by Thomas Kennedy in the Maryland Legislature of 1818.

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