The Neglected Tale of America’s First Religious Freedom LawDavid J. B. Trim November/December 2023
Tracing the origins and legacy of the Maryland Act of Toleration of 1649
(This painting by Emmanuel Leutze entitled “The Founding of Maryland” (1634) depicts the Piscatawy Indians meeting with the colonists in St. Mary’s City. The figure on the left is believed to be Jesuit missionary Andrew White. In front of him, the chief of the Yaocomico clasps hands with the colonists’ leader, Leonard Calvert.)
In 1634, what became the colony of Maryland was founded when English settlers bought land from the Yaocomico people and established St. Mary’s City. The Maryland Act of Toleration of 1649 was the first religious freedom legislation passed on the American continent. Yet the Maryland story of religious toleration—probably because it was a story of the settlement of Catholics in America—has largely been left out, or minimized, in the popular American understanding of how religious freedom developed. This article briefly reviews how this landmark Act of Toleration came about, and some of its legacy.
The Maryland colony had its origins in the desire of a Catholic English nobleman, George Calvert, Lord Baltimore, and of his son and heir, Cecil Calvert, to found and govern a colony in the New World. The Calverts were unquestionably motivated partly by the desire “to gain wealth, enhance their status, and enlarge [their] king’s dominions”; but it was also the case “that the Calverts acted to secure their religious freedom and the right of their coreligionists to worship without fear of the penal laws” that made the public practice of Catholicism illegal in early modern England.1
George Calvert had been raised a Roman Catholic, but for most of his life he conformed to the Church of England, the state church.2 This allowed him to rise to high rank in the service of King James I, including serving as the secretary of state. During George’s time in office he founded a colony in Newfoundland named Avalon.3 In 1625, however, George “resigned his offices . . . over issues of foreign policy,” as England veered toward war with Catholic Spain, “but James I rewarded his years of service” by elevating him to the nobility as Baron Baltimore in the Irish peerage.4 The same year, 1625, George renewed “his allegiance to the Catholic faith.”5
However, “the now Catholic first Lord Baltimore [continued to] pursue his colonial interests.”6 Baltimore journeyed to Newfoundland in 1627, staying briefly, but returning “there in 1628, evidently prepared to settle permanently.” In 1628, however, with England at war with France, the Avalon settlements were raided by French ships. In addition, “Baltimore was plagued also by the opposition of some of the colonists to his policy of religious toleration. They resented the presence of the Roman Catholic priests whom he had brought out from England.”7 A Puritan preacher, Erasmus Stourton, reported to England his outrage that “the two priests in the colony . . . say Mass every Sunday ‘and doe use all other the ceremonies of the church of Rome.’ ”8
In August 1629 Lord Baltimore wrote to Charles I, petitioning the king “for a grant of land in Virginia. . . . Without waiting for a reply to this appeal,” he left for Jamestown.9 Once there, however, he discovered a confessional impediment to settling. Although “the 1609 [Virginia] charter did not exclude people ‘suspected to affect the superstitions of the Churche of Rome,’ it required those who wanted to reside in Virginia to take the oath of supremacy.” And the 1612 charter required the local “authorities to tender the oaths of supremacy and allegiance to anyone venturing” to the colony.10 In other words, to settle in Virginia required one to conform to the Church of England. When Baltimore arrived, the local authorities tendered the two oaths to him, but he absolutely refused to take them. The members of the governor’s council demanded that he “provide himself for the next ship . . . home.”11 George duly went back to England, where he sought a royal grant of territory to the north of the Virginia colony, around the great bay of the Chesapeake.
Charles I initially demurred. But Baltimore continued to press the king, with whom he was on very good terms, not only for a grant of land, but one with a charter that “would define his powers as the territory’s proprietor, or owner,” in contrast to the Jamestown colony, which had been settled by the Virginia Company. Such a proprietorship would allow him to make his own policy, including in religion. But George, 1st Lord Baltimore, died in April 1632, when on the verge of finally gaining his long-sought charter.12 It was issued later that year, however, granting to George’s son, Cecil, who had succeeded him as 2nd Lord Baltimore, and his heirs, powers over the new colony “equal to the king’s own power in England.”13 The date of Cecil’s conversion to the Church of Rome is not known, but after 1625 or 1626 “he lived openly as a Catholic” (and he took the name Cecilius on his confirmation).14
In March 1634, two ships, the Ark and the Dove, commanded by the new Lord Baltimore’s younger brother Leonard, “landed at St. Clement’s Island in the Potomac River.” The original colonists, while probably mostly Protestant, also included some Catholics.15 On March 25, 1634, a Jesuit priest, Andrew White, who had accompanied the expedition, “offered a Mass of thanksgiving, a day still celebrated annually as Maryland Day.”16 Today it is easy to lose sight of just how extraordinary this was. Back in England, from the reign of Elizabeth I on into the reign of Charles II, a period of more than 100 years, Jesuit priests, operating as “missionaries” to provide spiritual care to Roman Catholics, if discovered, would typically be executed by hanging, drawing, and quartering—effectively being publicly tortured to death in a truly horrific manner. Yet here were Jesuit priests presiding over the founding of a new colony.
Leonard Calvert and his men left St. Clement’s Island, seeking “a place to settle. They struck a bargain with the nearby Yaocomaco, a peaceful farming and hunting group, for their village land. . . . Three days later, the remaining colonists arrived at the site, which they named St. Mary’s City.” It was the seat of government for the new colony, dubbed Maryland, from its foundation in 1634 up to 1695. This new settlement, while named in theory for Charles I’s wife, Queen Henrietta Maria, could also be understood as being named after the virgin Mary. Within a few years of the founding, the settlers “added about ten houses, a storehouse, a mill [and] a Catholic chapel.”17 Almost from the start, then, this capital of the new colony included a place of public Catholic worship, in defiance of the laws governing religion back in England.
A recent historian has rhetorically asked whether Father White’s celebration of a Catholic Mass was “an act of celebration or act of defiance, or both?”18 We may never know the answer, but what seems clear is that the Calvert family never intended “to establish Maryland as a Roman Catholic colony.”19 Even apart from the fact that Cecilius Calvert “knew that a colony that depended solely on the immigration of Catholics would not sustain itself,”20 politically a Catholic colony would have been impossible in the religiopolitical circumstances of early seventeenth-century England. But the Calverts unquestionably did want to create a colony in which Catholic and Protestant coexistence was possible.
“Baltimore’s Maryland was unique. . . . In the three colonies founded before Maryland, the civil government actively promoted religious activities; this was especially true in Plymouth and Massachusetts Bay, where religion had been the principal reason for the colonies’ founding.” In contrast, under the 2nd Lord Baltimore’s proprietorship, “Maryland assiduously avoided any taint of a religious test for voting [in local elections] or holding [local] office,” in contrast to England (or the other three colonies), where only Protestants could do either.21 The exception was that Jesuits could not vote or hold office. Baltimore did not oversee the establishment of local churches and require inhabitants to support them through taxation, as was done in Virginia: “His government founded no churches.” Yet he allowed the Jesuits to conduct “worship services for the Catholics.”22
A History of Division
This evenhanded policy was not without controversy. In the 1640s, civil war broke out in England and the British Isles, the fruit of both political and religious divisions. The English Parliament fought King Charles I, defeated him, and in 1649 executed him. But divisions went beyond the rivalry of king and Parliament. “Anglicans, Catholics, Puritans, Presbyterians, and other Protestants had many deep-seated disagreements,” and “fighting among different groups in England inevitably spilled over into Maryland. With a Catholic proprietor and governing elite, and a mostly Protestant population, Maryland could not avoid being drawn into the fight.”23
In these turbulent times “the Calverts’ Catholicism . . . was used on more than one occasion during battles for political control in Maryland. In 1645 and again in 1654, [Lord] Baltimore temporarily lost control of his colony to enemies who used his Catholicism as leverage against him.”24
The Act of Toleration
In response to these turbulent times, Lord Baltimore set out a vision for a different kind of future, writing in 1649: “By Concord and Union a small Collony may growe into a great and renouned Nation, whereas by Experience it is found, that by discord and Dissention Great and glorious kingdomes and Common Wealthes decline and come to nothing.” In 1651 he wrote that “a Government divided in it self must needs bring Confusion and Consequently much misery upon the people under it.”25 He doubtless was commenting partly on the political division that afflicted the British Isles in the era, but he was also surely addressing the problem of religious division and the need to find confessional “Concord.”
Baltimore’s vision did not remain theoretical. In 1649, at his urging, the colonial assembly in St. Mary’s City passed “An Act Concerning Religion.” While the act “codified into law the [preexisting] informal policy,” it should not be discounted on these grounds, for the act was a significant departure from the persecutory mindset that had previously prevailed in Europe and its colonies.26 It was “the first such legislation in the English-speaking world.”27 The act provided that no person “professing to believe in Jesus Christ shall henceforth bee any waies troubled, molested, or discountenanced for or in any respect of his or her religion nor in the free exercise thereof.”28 While this act extended toleration only to Trinitarians (since Socinians, or anti-Trinitarians, were held not “to believe in Jesus Christ”), the act established a notable—and noble—precedent. It is the source for the language of “free exercise” of religion found in the First Amendment to the United States Constitution.
Forty years after the Act of Toleration, “Baltimore’s government was overthrown permanently when a group of Protestant rebels seized control of the colony in the name of William and Mary,” who, in the “Glorious Revolution,” had ejected James II, England’s last Roman Catholic king. But in 1689 in Maryland there were “Protestants [who] supported the Calverts,” and part of the opposition to Baltimore was based on his proprietorial rule, not his confessional policy, so that, as one historian writes, “to see the battles as simple oppositions between Catholics and Protestants risks oversimplifying a complex issue.”29
Two hundred years after the foundation of Maryland, in a United States in which Protestantism predominated, the Catholicism of the Calverts and of many of Maryland’s early settlers was an embarrassment. However, the state’s assembly “believed that [the] policy of religious toleration should be understood as foreshadowing the right of religious freedom found in the U.S. Constitution.” Thus, the state legislators, in establishing a college at St. Mary’s City (St. Mary’s Female Seminary, today’s St. Mary’s College of Maryland), set it up as nondenominational, “and the Seminary’s Board of Trustees was subsequently adamant that no ‘controversial questions of churches shall be permitted . . . on the consecrated spot where free toleration on the subject of religion was first promulgated.’ ”30 But in fact, in its early years, “religious disputes shut down the seminary for three years and threatened its permanent closure.” A Catholic society argued “that the Maryland founding and origin of religious liberty were a Catholic legacy,” but influential Protestants countered “that religious liberty in Maryland reflected economic pragmatism on Cecil Calvert’s part.” For many years the “dominant interpretation” historiographically came to be that “the Lords Baltimore [were] colonial entrepreneurs who acted solely or primarily for economic gain.”31
Today the work of recent historians makes it plain that “families like the Calverts, who willingly risked practicing their faith openly while pursuing public goals, helped to keep the Catholic religion alive in England and in America.” Rather than seeing them “as running from something negative (government persecution),” they were “moving toward something positive.”32 The Catholic contribution to the first act of religious toleration in the English language is no longer underplayed or denied.
1 John D. Krugler, English and Catholic: The Lords Baltimore in the Seventeenth Century (Baltimore: Johns Hopkins University Press, 2004), pp. 6, 7.
2 Ibid., p. 4.
3 Allan M. Fraser, “Calvert, George, 1st Baron Baltimore,” Dictionary of Canadian Biography, vol. 1 (1000–1700): http://www.biographi.ca/en/bio/calvert_george_1E.html.
4 Suzanne Ellery Chapelle and Jean B. Russo, Maryland: A History, 2nd ed. (Baltimore: Johns Hopkins University Press, 2018), p. 4.
5 Krugler, English and Catholic, p. 4.
6 Ibid., p. 5.
7 Fraser, “Calvert, George, 1st Baron Baltimore.”
8 Krugler, English and Catholic, p. 97.
9 Fraser, “Calvert, George, 1st Baron Baltimore.”
10 Krugler, English and Catholic, p. 105.
12 Chapelle and Russo, Maryland: A History, pp. 4, 7; Krugler, English and Catholic, pp. 117, 118.
13 Chapelle and Russo, Maryland: A History, p. 5.
14 Krugler, English and Catholic, p. 131.
15 Chapelle and Russo, Maryland: A History, p. 11; Krugler, English and Catholic, pp. 135, 136.
16 Chapelle and Russo, Maryland: A History, p. 11; Krugler, English and Catholic, p. 157.
17 Chapelle and Russo, Maryland: A History, p. 11.
18 Krugler, English and Catholic, p. 157.
19 Chapelle and Russo, Maryland: A History, p. 5.
20 Julia A. King, Archaeology, Narrative, and the Politics of the Past: The View from Southern Maryland (Knoxville: University of Tennessee Press, 2012), p. 55.
21 Krugler, English and Catholic, pp. 157, 158; cf. Chapelle and Russo, Maryland: A History, p. 7.
22 Krugler, English and Catholic, p. 158.
23 Chapelle and Russo, Maryland: A History, p. 15.
24 King, Archaeology, Narrative, and the Politics of the Past, p. 56.
25 Both are quoted in Krugler, English and Catholic, p. 133.
26 King, Archaeology, Narrative, and the Politics of the Past, p. 56.
27 Chapelle and Russo, p. 16.
28 Quoted in King, p. 56.
29 King, Archaeology, Narrative, and the Politics of the Past, p. 56.
30 Ibid., p. 68.
31 Ibid., p. 88; Krugler, English and Catholic, p. 3.
32 Krugler, p. 4.