Does it strike you as odd that the Maryland Act can simultaneously proclaim the establishment of the Christian religion and the toleration of religion as central principles?
Compare the Maryland Act (1649) with the early state constitutions and Madison’s Memorial and Remonstrance (1785). (See "Virginia Declaration of Rights" (1776); "New Jersey Constitution" (1776); "Pennsylvania Declaration of Rights" (1776); "Massachusetts Declaration of Rights" (1780); "Madison's Memorial and Remonstrance" (1785).)
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Introduction
The act was passed by the Maryland Assembly on April 21, 1649, and confirmed by the Lord Proprietary on August 26, 1650. The first four paragraphs emphasize the centrality of the Christian religion to a well-governed commonwealth. The last two paragraphs provide protection for the “free exercise” of religion—that is, free exercise for any Christian.
The 1649 Maryland Act Concerning Religion—also known popularly as the Toleration Act—is a good example of the paradoxical relationship in America between the establishment of religion and the free exercise of religion. This paradox—both the public establishment of religion and the individual right of conscience were supported simultaneously at various times among the colonies—emerged during the colonial experience. It became controversial only in the 1780s, when pressure grew for disestablishment (Memorial and Remonstrance Against Religious Assessments).
The first two thirds of the act established the importance of the public recognition of the Christian religion for “a well-governed” commonwealth. In fact, the freemen and the governor expressly state the “serious” causal connection between the promotion of political virtue and respect for established religion. To that end, provision is made for the punishment of a series of violations ranging from death in the case of blaspheming God to a fine for profaning the Sabbath. The 1649 act established the public centrality of Christianity without designating preferential treatment for one Christian sect. When Lord Baltimore’s property became a royal colony in 1702, the establishment portion of the paradox acquired an additional dimension. The Church of England became the established sect in 1702.
The last third of the act recognizes the theological and political importance of religious toleration, including severe penalties to be levied against individuals who violate the free exercise of religion clause. These include reparations to be paid by the wrongdoer to the person whose individual right to freedom of conscience has been violated. The Maryland Act not only explicitly uses the phrase “free exercise” of religion but does so at least one hundred years before the enlightenment argument that the free exercise of religion was a natural right.
—Gordon Lloyd
Source: Proceedings and Acts of the General Assembly of Maryland, 1637–1664 (Baltimore: Maryland Historical Society, 1883) vol. I: 244–247.
Forasmuch as in a well-governed and Xpian [Christian] commonwealth matters concerning religion and the honor of God ought in the first place to be taken, into serious consideration and endeavored to be settled. Be it therefore ordered and enacted by the Right Hoble [Honorable] Cecilius Lord Baron of Baltimore absolute lord and proprietary of this province with the advise and consent of this General Assembly. That whatsoever person or persons within this province and the islands thereunto belonging shall from henceforth blaspheme God, that is curse him, or deny our Savior Jesus Christ to be the son of God, or shall deny the Holy Trinity the father, Son, and Holy Ghost, or the God-head of any of the said three persons of the Trinity or the unity of the Godhead, or shall use or utter any reproachful speeches, words or language concerning the said Holy Trinity, or any of the said three persons thereof, shall be punished with death and confiscation or forfeiture of all his or her lands and goods to the Lord Proprietary and his heirs.
And be it also enacted by the authority and with the advice and assent aforesaid, that whatsoever person or persons shall from henceforth use or utter any reproachful words or speeches concerning the blessed Virgin Mary the Mother of our Savior or the holy Apostles or Evangelists or any of them shall in such case for the first offense forfeit to the said Lord Proprietary and his heirs lords and proprietaries of this province the sum of five pound sterling or the value thereof to be levied on the goods and chattels of every such person so offending, but in case such offender or offenders, shall not then have goods and chattels sufficient for the satisfying of such forfeiture, or that the same be not otherwise speedily satisfied[,] that then such offender or offenders shall be publicly whipped and bee imprisoned during the pleasure of the Lord Proprietary or the Lieutenant or chief Governor of this province for the time being. And that every such offender or offenders for every second offence shall forfeit ten pound sterling or the value thereof to be levied as aforesaid, or in case such offender or offenders shall not then have goods and chattels within this province sufficient for that purpose then to be publicly and severely whipped and imprisoned as before is expressed. And that every person or persons before mentioned offending herein the third time, shall for such third offense forfeit all his lands and goods and be for ever banished and expelled out of this province.
And be it also further enacted by the same authority advice and assent that whatsoever person or persons shall from henceforth upon any occasion of offense or otherwise in a reproachful manner or way declare, call or denominate any person or persons whatsoever inhabiting residing trafficking trading or commercing within this province[,] or within any ports, harbors, creeks or havens to the same belonging[,] an heretic, schismatic, idolater, Puritan, Independent, Presbyterian, Popish priest, Jesuit, Jesuited Papist, Lutheran, Calvinist, Anabaptist, Brownist, Antinomian, Barrowist, Roundhead, Separatist[1] or any other name or term in a reproachful manner relating to matter of religion shall for every such offense forfeit and lose the sum of ten shillings sterling or the value thereof to be levied on the goods and chattels of every such offender and offenders, the one half thereof to be forfeited and paid unto the person and persons of whom such reproachful words are or shall be spoken or uttered, and the other half thereof to the Lord Proprietary and his heirs lords and proprietaries of this province. But if such person or persons who shall at any time utter or speak any such reproachful words or language shall not have goods or chattels sufficient and overt within this province to be taken to satisfy the penalty aforesaid or that the same bee not otherwise speedily satisfied, that then the person or persons so offending shall be publicly whipped, and shall suffer imprisonment without bail or maineprise[2] until he, she, or they respectively shall satisfy the party so offended or grieved by such reproachful language by asking him or her respectively forgiveness publicly for such his offense before the magistrate or chief officer or officers of the town or place where such offence shall be given.
And be it further likewise enacted by the authority and consent aforesaid that every person or persons within this province that shall at any time hereafter profane the Sabbath or Lords day called Sunday by frequent swearing, drunkenness or by any uncivil or disorderly recreation, or by working on that day when absolute necessity doth not require it, shall be every such first offense forfeit 2s. 6d sterling or the value thereof, and for the second offence 5s sterling or the value thereof, and for the third offence and so for every time he shall offend in like manner afterwards 10s sterling or the value thereof. And in case such offender and offenders shall not have sufficient goods or chattels within this province to satisfy any of the said penalties respectively hereby imposed for profaning the Sabbath or Lords day called Sunday as aforesaid, that in every such case the party so offending shall for the first and second offense in that kind be imprisoned till he or she shall publicly in open court before the chief commander judge or magistrate, of that county, town or precinct where such offence shall be committed acknowledge the scandal and offense he hath in that respect given against God and the good and civil government of this province. And for the third offence and for every time after shall also be publicly whipped. And whereas the enforcing of the conscience in matters of religion hath frequently fallen out to be of dangerous consequence in those commonwealths where it hath been practiced, and for the more quiet and peaceable government of this province, and the better to preserve mutual Love and amity amongst the inhabitants thereof[:]
Be it therefore also by the Lord Proprietary with the advice and consent of this assembly ordained & enacted (except as in this present act is before declared and set forth) that no person or persons whatsoever within this province, or the islands, ports, harbors, creeks, or havens thereunto belonging professing to believe in Jesus Christ, shall from henceforth be any ways troubled, molested or discountenanced for or in respect of his or her religion nor in the free exercise thereof within this province or the islands thereunto belonging nor any way compelled to the belief or exercise of any other religion against his or her consent, so as they be not unfaithful to the lord proprietary, or molest or conspire against the civil government established or to be established in this province under him or his heirs. And that all & every person and persons that shall presume contrary to this act and the true intent and meaning thereof directly or indirectly either in person or estate willfully to wrong disturb trouble or molest any person whatsoever within this province professing to believe in Jesus Christ for or in respect of his or her religion or the free exercise thereof within this province other than is provided for in this act that such person or persons so offending, shall be compelled to pay treble damages to the party so wronged or molested, and for every such offence shall also forfeit 20s sterling in money or the value thereof, half thereof for the use of the Lord Proprietary, and his heirs lords and proprietaries of this province, and the other half for the use of the party so wronged or molested as aforesaid. Or if the party so offending as aforesaid shall refuse or be unable to recompense the party so wronged, or to satisfy such fine or forfeiture, then such offender shall be severely punished by public whipping & imprisonment during the pleasure of the Lord Proprietary, or his Lieutenant or chief Governor of this Province for the time being without bail or maineprise.
And be it further also enacted by the authority and consent aforesaid that the sheriff or other officer or officers from time to time to be appointed & authorized for that purpose of the county, town or precinct where every particular offense in this present act contained shall happen at any time to be committed and whereupon there is hereby a forfeiture, fine or penalty imposed shall from time to time distrain and seize the goods and estate of every such person so offending as aforesaid against this present act or any part thereof, and sell the same or any part thereof for the full satisfaction of such forfeiture, fine, or penalty as aforesaid, restoring unto the party so offending the remainder or overplus of the said goods or estate after such satisfaction so made as aforesaid.
The freemen have assented. Thomas Hatton
Enacted by the Governor William Stone
Footnotes
- 1. Except for “Popish priest, Jesuit, Jesuited Papist,” which refer to Roman Catholic priests, these terms all refer to various kinds of Protestants not members of the Anglican church established in Britain. An “Antinomian” is someone who believes that the gift of grace removes the obligation to obey the moral law.
- 2. Release of a prisoner to someone taking responsibility for the prisoner once released.
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