Citizen Legislators and Toleration
remarks by
Dr. Edward C. Papenfuse, Jr., State Archivist,
to the House and Senate of Maryland, March 25, 1999

Cecil Calvert's home where Assembly met
Today we pause in the midst of one of the busiest times in your public careers as Citizen Legislators to pay tribute to your predecessors and the founding of Maryland.    365 years ago on a small island in the Potomac River named St. Clements the first  Marylanders knelt on a ground "covered with pokiberries (a little wilde walnut hard of shell, but with a sweet kernell)" and, in the words of one of them "with devotion tooke solemne possession of the Country."

Today we celebrate the 365th anniversary of the founding of Maryland,  by bringing into this chamber with an honor guard provided by  the St. Mary's City Militia, a  modest volume of  one of your earliest  legislative proceedings.  It is written in the hand of the archivists of their day, the clerks of the Council of Maryland and begins in 1647.  Here  among its yellowing pages in writing cramped but still boldly  legible, is to be found the original recording, made on April 21, 1649,  of An Act Concerning Religion, better known as Maryland's Act of Toleration.

Imbedded in Maryland's 1632 charter is a remarkable provision, the first constitutional provision of its kind in any of the North American colonies. In Virginia, the private company governing that colony had recognized the need for some form of representative government by 1619, but at its very beginning the Maryland General Assembly consisted of all freemen.  The Maryland charter specified that the laws of the province had to be "of and with the advise, assent, and approbation of the free-men of the said Province, or the greater part of them, or of their delegates or deputies."  Whereas the 'freemen' who were called to assent to laws in Virginia and New England were a small, restricted number of individuals in a much larger disenfranchised population, at the outset in Maryland legislators were any adult male not bound by indenture or slavery.  In time property qualifications would be added to the definition of what constituted 'freemen,' and they would elect Delegates to represent them to pass laws "as if they were advised & assented unto by all the freemen of the province personally." Despite the one occasion in 1648 when a woman, Margaret Brent, unsuccessfully demanded the right to two votes as a landowner and attorney for Lord Baltimore, women would have to wait until 1920 for the right to vote,  property would remain the basis of how free men chose their representatives until the first decades of the 19th century, and not until the second half of the 20th century would the word 'citizen' lose any qualification of race, although it might be well to remember that in those first years of settlement a black man, Mathias de Sousa not only voted but served as a member of the General Assembly.

In order to accommodate an assembly of Freemen at St. Mary's and other public business, the first Governor of Maryland, Leonard Calvert, added a large room to his house that was twenty-two feet wide and about fifty feet long, with one large fireplace.  It was called the St. Mary's Room, and after its purchase by the General Assembly in 1662, became the first official State House. The last known general assembly of all Freemen in 1648 met elsewhere at another large house called St. John's.  So many citizens attended that the clerk gave up listing the names and simply entered "& divers other inhabitants."  With the next assembly, it was determined that representatives of the Freemen should be elected, a practice that henceforth would become the rule.  Summoned by a new Protestant governor, William Stone, the Assembly of April 1649 probably met in the St. Mary's Room of the "Country's House" that Stone would soon acquire from Leonard Calvert's estate.  It would be this assembly that would take up Lord Baltimore's draft of "An Act Concerning Religion."

The origins of the language of the act are obscure, although there were a number of precedents including the "Act Against Swearing and Cursing" that the British Parliament passed during the reign of King James I (21 Jacobi I. c. 20), three acts passed during the reign of his son and grantor of Maryland's charter, Charles I (1 Caroli I. c. 1, c. 4, and 3 Caroli I. c. 1), which regulated behavior in the taverns and on Sunday, and the 'draconian Blasphemy Ordinance of 1648.'  The penalty for a conviction for blasphemy under the common and statute law of England had long been death.  Some years later, Parliament itself would try one notorious blasphemer, James Naylor, deciding in the end not to hang him, but to brand his forehead "B" with a red hot iron and set him to ride through the streets of Bristol backwards on a donkey for the sin of claiming he was the resurrected Christ.

No one knows for certain who originally drafted An Act Concerning Religion, or the degree to which it was altered by the Maryland Legislature. There is some evidence that Father Andrew White may have been available to help Lord Baltimore compose the draft he sent in 1648, and the letter transmitting the laws passed in 1649 back to Lord Baltimore for his consideration implies that the Legislature enacted Lord Baltimore's version unaltered.  Recent research suggests that the intent of the law would have been in keeping with White's efforts to reconcile the Jesuits and English Catholics with Cromwell during the final stages of the English civil war.  But what is most important to remember, however, is that the law as a whole outlined a policy of punishment and fines for intolerant behavior that had no precedent elsewhere, and which sought to convince Marylanders that the best policy in matters of religion was to keep their criticisms of another's faith to themselves.  The Act did not prohibit preaching and efforts to persuade others to a particular religious point of view (as long as it was a Christian point of view), but it did provide severe strictures and fines for those who would openly criticize or slander any belief, Christian or non-Christian.  The language of the law is explicit:

...whatsoever person or persons shall from henceforth upon any occasion of offence otherwise in a reproachfull manner or way declare care call or denominate any person or persons whatsoever inhabiting, residing, traficking, trading or comercing within this province or within any ports, harbours, creeks or havens to the same belonging, an Heretick, Schismatick, Idolator, Puritan, Independent Presbyterian, Antenomian, Barrowist, Roundhead, Seperatist, Popish Priest, Jesuit, Jesuited Papist, Lutheran, Calvenist, Anabaptist, Brownist or any other name or term in a reproachful manner relating to matters of Religion shall for every such offence foreit and lose the sum of ten shillings Sterling or the value there of to be levied on the goods and chattels of every such offender and offenders

and if they could not pay, they were to be "publickly whipt and imprisoned without bail" until "he, she, or they shall satisfy the party so offended or grieved by such reproachful language, ... ."

If only the people in and surrounding Kosovo, the people of Ireland, of India, of countless other troubled places on this earth, had the vision to adopt the best elements of such a law and had the stamina, self discipline, and drive to abide by its provisions of not criticizing others for their religious views, perhaps the unconscionable bloodshed that we read about every morning and see every evening on the news could be avoided.

The Maryland Act Concerning Religion also attempted to separate church and state, a constitutional principle that would have to wait another 150 years before it became accepted practice in America.  With a minor interruption the law remained in force in Maryland for forty of those years.  Near the end of his life Cecil Calvert would point to it as one of his singular achievements, making the claim that by virtue of its enforcement, Maryland was a place where "every person who repaireth thither, intending to become an inhabitant finds himself secure, as well in the quiet enjoyment of his property, as of his Conscience."

As Baltimore Evening Sun editor Gerald Johnson pointed out on the 300th anniversary of the Act Concerning Religion, the version first officially recorded on April 21, 1649 concludes with the simple, but profoundly important words "The Freemen have assented."  When it was repealed in 1689 and its principles forced to lay dormant until the American Revolution, it was an act of Parliament and the decrees of the crown that were the main culprits.  Lord Baltimore, back in England in an unsuccessful attempt to retain his political power in Maryland, even had the Act Concerning Religion printed in full as evidence of toleration in his colony.  At that point, however, neither he nor the colonists who supported him, were sufficiently strong to overcome the prevailing winds of political intolerance.  Lord Baltimore lost his political powers, and the Citizen Legislators of Maryland lost sight of a basic lesson to be learned from their struggles to date to form an independent legislature.  For democracy to be viable, vibrant, and tolerant, its representatives must be willing and able to pay persistent attention to reinforcing and reiterating basic constitutional principles that rise above the political fray.  Otherwise discord, apathy and ignorance of past accomplishments intervene, and all citizens suffer.

Today,  in addition to bringing the original recording of the Act of Toleration into your chamber, I also come  bearing two gifts from your leadership to help you remember and to celebrate Maryland Day.

The first is a printed version of a web-based document packet on the 1649 act of toleration, which is also available on the Maryland State Archives web site free for use in the schools.

The second gift is the revision of a book I helped put together 23 years ago, a book that then and now,  in its new edition,  celebrates the richness and diversity of our State, a State in which I fervently hope we practice the best principles of the Act Concerning Religion.  Trusting that this second edition of the A New Guide to the Old Line State will prove both readable and informative --- an introduction to Maryland of today that will benefit visitor and resident alike and lead to a full appreciation of the state's rich history, we have dedicated this work to the late Comptroller Louis L. Goldstein.  Louis visited every corner of Maryland and incorporated his unsurpassed knowledge of its past into just about every speech he gave.  He understood the blessings that come with being able to place what we see and what we no longer see into its historical context.  He understood why the enthusiasm of the early settlers proved so contagious and why they were willing, at least for a time, to put aside their religious differences to work towards common and productive goals.  He also asked all of us-- even those who are just passing through-- to help preserve those historical memories that delight and instruct us in the wisdom and, at times the follies, of the Citizen Legislators who help make Maryland what it is today and what it will be tomorrow.

A very happy Maryland Day to you all.

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