$ 52] A LAY SUPREMACY 429 matter of baptizing, no ecclesiastic was to go out among the Indians and baptize them, without a permit or pass at every turn from a civil magistrate. The bill "for arbitrary punishment of some enormious offences," 6 did not, as far as the language went, exclude the spiritual jurisdiction of the tribunal of conscience from the category of that usurped exercise of authority, for which hanging was provided; thus anticipating the enactments of some European codes of the nineteenth century against the clerical crime of "disturbing consciences." 8 Temporally, the new establishment was to be provided both with a glebe and with tithes. For the glebe had already appeared in the former Lewger code, under the title of a "bill for settling of the glebe." A contribution of a hundred acres was exacted therein of every manor; so that, if the manor were only a thousand acres in extent,10 the allotment to the Church establishment should be no less than a tenth or a tithe of the land. This being exacted of a manor implied that ordinary tithes or other contributions should, as a matter of course, be demanded of less important holdings. Entering thus into the accounts of the public debit, though by no means at the expense of the public treasury or the Proprietary's reserves of land, the ecclesiastical foundation was to be on the same footing, under the head of property, as any other establishment, which was contemplated in canon law and recognized in civil law. It was guaranteed and protected in civic rights; and the taxables were made to pay. A Church element was judged to be highly important and even necessary in the colony; so much so that the Jesuits themselves, when marked out for expropriation and banishment, were at the same time caught in the grip of a new ordinance, which kept them from moving out of the province, even if they wanted, until substitutes should have been secured. But the freemen put a stop to that exercise of prepotence."1 Jesuits apart, the Maryland Church establishment had features of its own minutely defined, as they are traced in the Lewger and Baltimore documents. It might seem, indeed, that some of these Archives of Maryland, Proceedings of the Assembly, p. 22. Compare the legislation of the Cavour Ministry, Turin, 1856, by which the denial of Sacramental absolution in the tribunal of penance at Easter, or on a deathbed, was brought within the case of an appeal ab abusu, the Gallican appel comme d'abus. Cf. P. Balan, Storia della Chiesa, II. lib. vi. p. 42 (edition 1879). • Supra, § 48, pp. 390, 391; § 49, pp. 410, 411. 10 Supra, § 43, p. 364. "Proceedings of the Assembly, p. 180, ad calc.; September 13, 1642.—Infra, § 66, (2), pp. 532–534. papers were drawn up for the Jesuits alone. But it is to be observed that the signature of the Provincial, which the Proprietary strained every nerve to obtain, would have had the effect of creating an ecclesiastical law for Maryland,-determining the status of ecclesiastics, interpreting canon law, and even limiting the application of papal Bulls; as if the authority of the English Provincial of the Jesuits were that of the sacred Council of Trent itself. Let us follow the tracing of this Church scheme as so drafted. (2) First, the Maryland Church establishment was a clerical (2) Details of department of State, or a bureau; which, however, as the projected it borrowed its general idea from the Protestant or establishment. Catholic establishments of the time, belonged to the category of canonical institutions, as they did. Secondly, according to the programme, it cost the Proprietary nothing; for it was to be endowed with manorial land cleared by the adventurers, at the cost of their labour and sweat, not to mention the further contributions under the head of tithes. Thirdly, all the emoluments incidental to ecclesiastical jurisdiction in the external forum, such as testamentary administrations, probate of wills, supervision of legacies, all matrimonial causes, suits, and dispensations, were withdrawn from the ecclesiastical forum and committed to lay magistrates. There was not the slightest probability that what Lewger pretended in his Cases to treat as but a temporary withdrawal,12 would ever be made good again to the Church's forum, by calling for a regular ecclesiastical establishment. Meanwhile, such an extension of power was given to laymen over testamentary dispositions as no bishop ever dreamt of in the Catholic Church; for instance, that of breaking Catholic wills for showing therein that one had been a Catholic and was acting accordingly.18 Fourthly, the clergymen, being citizens, were, like other classes, subject to all civil contributions, taxes, servitudes, and burdens, whether real or personal; and, as to any land of their own, that might be withdrawn from them by vote of the Assembly.14 Fifthly, the clergymen, not being on the same footing as mere citizens, but being in a canonical state, were deprived of civic franchises. For they were either under the constitution of a corporation aggregate, like a religious Order, or under a corporation sole, in the person of a bishop. In both cases they were disqualified from receiving land, buying it, holding it, under whatever title of 12 Cases, preamble. Documents, I. No. 11. 13 Cases, No. 7. Mortmain. 14 Ibid., No. 16. 8 52] DETAILS AND ANOMALIES 431 religion or charity it might have been offered; and, if actually conveyed, it was to be forfeited to the Proprietary.15 The declaration of the Jesuit Fathers regarding the immorality of this policy barred the introduction of it when it appeared as part of the new Conditions of Plantation, dated November 10, 1641.16 It was introduced, however, by Baltimore's own authority, in the Conditions of Plantation published seven years later. This act of the Proprietary was a violation of the intentions manifested by his father, who had provided for just the opposite in the Maryland charter by excluding the Statutes of Mortmain.17 As at first attempted by Cecil, Lord Baltimore, and declared to be in force (November 10, 1641), the said Statutes were of two kinds. They were, first, such as had been passed in the times of Catholic England to regulate the acquisition of property by the Church; and, secondly, they were all the others which had been passed since Henry VIII.'s time, and which made illegal all use of property for purposes distinctively Catholic. This was the penal legislation which classed a Catholic title and right to property under the designation of "superstitious uses." And in this sense were conceived at least three of Lewger's Cases; one of which, the ninth, was so formulated that "spirituall persons" as such, not necessarily being incorporated, were by their very cloth rendered incapable of receiving land from any one save the Proprietary, and were subject to expropriation for the lands which they had acquired otherwise. Insinuating a feudal dependency, as if lands sold in the American plantation of the seventeenth century were gifts from a feudal lord to vassals under feudal obligations, the same ninth Case erroneously denominated the land, sold in America, by the old feudal term for land given in Europe, viz. "lay fee." As the introduction into Maryland of the Protestant legislation on mortmain (November 10, 1641) was reconsidered by Baltimore, he dropped it with its implication of "superstitious uses," which made the religion of his father a "superstition;" and in his next Conditions of Plantation (1648) he inserted the limitation of mortmain as passed in Catholic times only: "The Statutes of Mortmayne, heretofore made in the kingdom of England at any time before the reign of Henry VIII. who was king of that realm." 19 18 "Baltimore's three papers submitted to the Provincial for signature: The Points; the Surrender or Assignment; the Concordat.—Documents, I. Ños. 15, 21, 22. 16 Infra, § 62. 17 Supra, § 17 (3), pp. 240-242.--Infra, Appendix C, § 75, p. 596, note 20; § 76(5), P. 604. 18 Cases, Nos. 7, 8, 9. 19 Proceedings of the Council of Maryland, 1636-1667, p. 227, No. 12. Sixthly, the persons, capacities, functions of the clergy, deputed by their legitimate superiors for service in Maryland, were entirely subject to the inspection and approval of the temporal authorities. Baltimore himself insisted on making the inspection of the gentlemen to be sent by the Provincial from London (September, 1642), as if they were goods passing a custom-house. And he demanded for himself and his heirs the right of ordering out of Maryland any Jesuit whatever, whether one or more [or all?], without assigning any reason whatever beyond the fact of notification; and then the Provincial was to recall such person or persons within one year; or else the baron would make provision by deportation of the same to some convenient harbour, whither some ship might happen to be going. And the gentleman in the same place intimated that such deportation might be effectuated by him or his heirs "for some other reason than misconduct.' "' 20 Lastly, in this scheme of a Church establishment, the Pope's authority, as might be expected, met with no recognition whatever. The Council of Trent was not recognized outside of dogmatic definitions.21 The canonists of the Church were not allowed any standing whatsoever. Merits of the foregoing Church scheme. This singular scheme, by which just so much religion was admitted into the colony of Maryland as happened to be profitable to the parties admitting it, will be seen to have the merit of being about as far ahead of its time in the development of a bureaucratic Church, as Baltimore's notions of a feudal state in Maryland were behind their time. Still, both the belated feudalism and the anticipated Cæsarism were exactly calculated to put all the profits and influence of either to the account of one gentleman, the Proprietary. And not an obligation of any kind was assumed by him; except, perhaps, in the one case of the generous offer made to the Provincial, that when he or his heirs should demand the recall of one or more Jesuits out of Maryland, for any other reason save that of misconduct, then, if such person or persons went willingly, without creating any trouble, he or his heirs would stand the expense of presenting each with what apparently was hush-money, to the amount of £20 sterling, in cash or in kind, that is, in tobacco or skins. For the rest, the scheme was neither Catholic nor Protestant, neither American nor English. In America there was nothing as yet 20 Baltimore's draft of a Concordat, 5o.- Documents, I. No. 22. 21 Cases, No. 2. § 531 MISCONCEPTIONS OF THE ISSUES 433 that resembled it; and what George Calvert, first Baron of Baltimore, had contemplated for Maryland was altogether different. In England, though the King had made himself head of the Church, there was no such sinking of the ecclesiastical in the temporal administration. A hundred years later, although secularism had made further strides, still Blackstone wrote that the courts of law and equity in England followed the law of the Church's own forum, in matters which had been originally of ecclesiastical cognizance [with the Catholic Church in England]; and, according to the nature of the subject, they adopted the canon or imperial law.22 The canon law in question was that of the Catholic Church, so far as it had not been modified during the reign of Henry VIII. Short of those modifications, all canons, constitutions, ordinances, and synodals provincial, already existing and not repugnant to the law of the land or the King's prerogative, remained in force as they had proceeded from the Pope's authority, from that of his legates, or the national Catholic hierarchy; and they were binding on both clergy and laity 23 § 53. Five days before the freemen gathered for the fatal meeting of February 25, 1639, Father Andrew White wrote to Lord Baltimore a letter which has been already cited, referring to his Father former "tedious apologie" for his reputation, and inti- White's mating that Father Altham too had been dragged in view of the question. somehow for obloquy. White professes that he will endeavour in this letter to satisfy somewhat "the measure of your Lordships expectation" and "of my liege duety, in signifieng such occurrences and mysteries of the reale publique, which some solitarie howers, in studie of your Lordships happines, have recounted unto mee." Twice has he been brought to death's door, and now he is losing his hearing. He writes "to our great man," that is, the Provincial in London, for leave to return and spend just one year in England, and so undergo treatment for his deafness. This then is an occasion for his lordship to deal with the same Provincial, and secure a couple of missionaries "to come with the next shipps." There is Father Englebey [Augustin Ingleby] who lives in Suffolk, and Father Bennett [Thomas Blackfan] in Dorsetshire, "who both doe infinitely desyre 22 3 Blackstone, Commentaries, 436. 23 1 Blackstone, Comm., 82, 83.-1 Stephen, Comm., 66 (7th edition).-Testamentary and matrimonial matters were withdrawn from the ecclesiastical courts only by the Acts of 20 & 21 Vict., cc. 77 and 85. 3 Stephen, Comm., 304, 305.-The jurisdiction had been exercised by the ecclesiastical courts for "more than seven centuries." Stephen, loc. cit. Calvert Papers, i. 201–204. VOL. I. 2 F |