Introduction - English Law about Religious Toleration Prior to the Planting of Colonial America

Summary

England promulgated more laws of significance about religion than any nation in the Early Modern period in large part because of England’s break from the Catholic Church during the reign of Henry VIII and the inconsistent relationship that Henry VIII’s successors had with that church. The colonies chronicled in this book were planted primarily by English persons with an aversion to English laws that adversely impacted their religious beliefs and practices. Given the book’s emphasis on law, it is appropriate to provide a brief history of the English laws from which the planters of colonial America were fleeing. The Introduction sets the stage for the chapters about colonial America that follow.

Never discuss religion or politics with those who hold opinions opposite to yours; they are subjects that heat in handling, until they burn your fingers.

– Thomas Chandler Haliburton, Letter-Bag of the Great Western: or, Life in a Steamer (1840)

This book ignores the sage advice that Thomas Chandler Haliburton offers in the epigraph. I did not set out to write such a book. Rather, the book’s beginnings trace to a lunch I shared a decade or so ago with Pulitzer Prize-winning historian Gordon S. Wood shortly after my previous academic book had been published.¹ That previous book, A Distinct Judicial Power: The Origins of an Independent Judiciary, 1606–1787 (2011), endeavored to identify the origins of Article III of the Constitution of the United States by chronicling how the original thirteen states and their colonial antecedents allocated their respective judicial powers.² Gordon had graciously provided a “blurb” for that book’s dust jacket, and I mentioned to him during lunch that for my next book I was contemplating a thirteen-chapter volume about the animating principles of early American law that would explore why each of the original thirteen English American colonies was founded and how a particular colony’s laws effectuated and/or inhibited that particular colony’s animating principle. Montesquieu, I noted, had argued that each form of government has an animating principle – a set of “human passions that set it in motion” – and that each form can be corrupted if its animating principle is undermined.³

Of course, I knew there were not thirteen different animating principles. But there were more than one. Gordon said the project was a great idea. He also said it would take twenty years to complete. He recommended that I try a piece of it to see if the project was doable and if I wanted to be the one to do it. My disregard of Thomas Chandler Haliburton’s admonition notwithstanding, I do not always ignore sage advice, and I accepted Gordon’s. I decided to start with the colonies that had religion as an animating principle, whether it be toleration of religion such as in Rhode Island, or the founding of a colony to advance a specific religious perspective such as in Connecticut.

The admittedly unconventional ordering of the chapters in the book – most readers probably would have expected Massachusetts to be discussed first rather than last – stems from when, chronologically, the colony and/or the proprietor of the colony (e.g., Maryland’s first Lord Baltimore) became committed to the idea of religious toleration.⁴ The book also examines, in the relevant umbrella chapters, the separate colonies that eventually were absorbed by these five (e.g., Plymouth Colony is recounted in the Massachusetts chapter) and, in Pennsylvania’s case, two states that were owned partially (New Jersey) or fully (Delaware) by Pennsylvania’s proprietor during the colonial period. The Conclusion attempts to illuminate the book’s thesis: we can learn important lessons about history by focusing on law, just as we can by concentrating on economics, politics, and social and cultural forces. Concisely put, law – charters, statutes, judicial decisions, and sometimes traditions and the like – mattered in colonial America, and laws about religion mattered a lot.⁵

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England promulgated more laws of significance about religion than any nation in the Early Modern period. As will be seen, the colonies chronicled in this book were planted primarily by English persons with an aversion to English laws that adversely impacted their religious beliefs and practices. Given the book’s emphasis on law, it is appropriate to provide a brief history of the English laws from which the planters of colonial America were fleeing.⁶ Indeed, the Supreme Court of the United States, in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012) and again in Our Lady of Guadalupe School v. Morrissey-Berru (2020), noted that the scope of the doctrine of church autonomy should be drawn, at least in substantial part, from what we know about the Church of England and its regulation by Crown and Parliament.⁷

At the heart of that story is the Protestant Reformation, which began in Wittenberg, Germany on October 31, 1517, when Martin Luther, a teacher and a monk, published Disputation on the Power of Indulgences, or 95 Theses, that contradicted the Roman Catholic Church’s teachings. A religious reform movement then swept through Europe that culminated in the creation of a branch of Christianity called Protestantism, a name used collectively to refer to the many religious groups that separated from the Catholic Church due to differences in doctrine.⁸

England became the apotheosis of Reformation politics once Henry VIII (r. 1509–1547) manipulated medieval precedent to declare himself the sovereign of England in both temporal and ecclesial matters. The statutes that established his power illustrate why religious toleration could not receive official approval at the time: where support of a different religion was viewed as undermining the Tudor state’s absolute authority, it could not be allowed.

On October 11, 1521 Pope Leo X had issued a papal bull bestowing upon Henry VIII the title of “Defender of the Faith” in recognition of the English king’s pamphlet Assertio septem sacramentorum adversus Martinum Lutherum (“Declaration of the Seven Sacraments against Martin Luther”), written in response to Luther’s criticisms of the Catholic Church.⁹ A dozen years later a transformative moment of magnifying Henry VIII’s religious authority through law was memorialized in Parliament’s 1533 Act of Restraint of Appeals, which invalidated appeals to courts outside of Henry VIII’s own, especially to those of the pope. The statute decreed that all cases

whether they concern the King our sovereign lord, his heirs or successors, or any other subject or resident within the same of what degree soever they be, shall be from henceforth heard, examined, discussed, clearly finally and definitely adjudged and determined, within the King’s jurisdiction and authority and not elsewhere.¹⁰

It mattered not whether judgments came “from the see of Rome or any other foreign courts or potentates of the world”¹¹ because even before the formerly Catholic Henry VIII declared himself head of the Church of England he had outlined the true purpose of his separation from the pope; namely, to have himself recognized as a sovereign who was subject to no overarching authority. The Act of Supremacy of 1534 made it official by vesting supreme religious and political sovereignty within “the realm of England” in the Crown.¹² The 1534 Treasons Act mandated punishment by death for disavowing the Act of Supremacy.¹³ Sir Thomas More was executed in 1535 pursuant to the Treasons Act for refusing to accept Henry VIII as head of the Church of England.¹⁴ The 1536 See of Rome Act extinguishing the authority of the pope in England completed the break with Rome.¹⁵ The Act opened with a prelude recounting, in Henry VIII’s judgment, the pope’s depredations, his illegal usurpation of royal authority, and his impoverishment of the kingdom through the collection of annates and other church taxes. The Act went on to make it illegal to defend the pope, and it required all officers ecclesiastical and temporal to take an oath renouncing Rome’s authority. Of course, the event that most encouraged England’s break from Rome was Henry VIII’s desire to divorce Catherine of Aragon, which the pope had refused to permit.¹⁶ Henry VIII and his Parliaments did not merely increase the authority of the monarchy by transferring control of the ecclesiastical apparatus to it.¹⁷ They also quashed the autonomy of seigneurial franchises by depriving them of the power to designate justices of the peace, integrated marcher lordships into the shires, and incorporated Wales into the Kingdom of England.¹⁸ The Tudor state would not permit any competitors: toleration of other groups, especially of Catholics, would undermine the entire project.

After Pope Clement VII had threatened to excommunicate Henry VIII from the Catholic Church in 1530/1, Parliament passed the Act in Conditional Restraint of Annates of 1532 suspending papal taxes.¹⁹ Papal taxes were abolished altogether pursuant to the Act in Absolute Restraint of Annates of 1534.²⁰ The 1534 Act Concerning Peter’s Pence and Dispensations was the centerpiece of the legislation granting plenary powers in ecclesiastical matters to Henry VIII. It put an end to the pope’s power to grant dispensations, and prohibited the payment of Peter’s Pence, which was a tax of £200 that for centuries had been paid to Rome.²¹ The 1535/6 Act for the Dissolution of Lesser Monasteries began the legal process by which Henry VIII set about to dissolve the monasteries.²² The Act for the Dissolution of the Greater Monasteries of 1539 provided for the dissolution of more than 500 monasteries and religious houses remaining after the 1535/6 Dissolution of the Lesser Monasteries Act.²³ The 1539 Six Articles Act nevertheless retained a number of Catholic elements in Henry VIII’s church: communion in one kind, clerical celibacy, vows of chastity, private masses, auricular confession, and, most significantly, transubstantiation.²⁴ In 1536 and 1538 royal injunctions had been issued that were designed to give practical effect to changes in doctrinal emphasis.²⁵

Pope Paul III excommunicated Henry VIII on December 17, 1538. Paul III first issued his sentence of excommunication in August of 1535, after the executions of Sir Thomas More and Bishop John Fisher. That sentence had been suspended by the pope, who was hoping that Henry VIII would stop pursuing religious reforms and return to Catherine of Aragon. Henry VIII would not stop, and he would not return.²⁶

During the reign of Edward VI (r. 1547–1553), son of Henry VIII and Jane Seymour, the Book of Common Prayer – an English text for communion and church services written by the anti-Catholic Archbishop of Canterbury Thomas Cranmer – was codified as law in the 1548/9 Act of Uniformity and the updated 1551/2 Act of Uniformity.²⁷ The Acts were designed to make England a more Protestant nation, and failure to employ the Book of Common Prayer in church services could lead to imprisonment for both the preacher and the participants in the service. The 1551/2 Act of Uniformity abolished the last traces of the Catholic Mass, and explicitly denied the transubstantiation of the bread and the wine into the body and blood of Jesus Christ. The Sacrament Act of 1547 had decreed that communion should be received in both bread and wine, rather than in bread only.²⁸ The Act to Take Away All Positive Laws against the Marriage of Priests of 1548/9 allowed priests to marry within the Church of England.²⁹

The 1547 Act Dissolving the Chantries shuttered the small religious houses endowed with land to support a priest whose duty it was to sing Masses for the soul of the founder.³⁰ The Act flowed from the better-known laws of Edward VI’s father, Henry VIII, dissolving the monasteries. Similarly, the Royal Injunctions of Edward VI of 1547 reflected provisions that were issued earlier in the Henrician Injunctions of 1536 and 1538.³¹

Mary I (r. 1553–1558), the Catholic daughter of Henry VIII and Catherine of Aragon, repealed in 1553, via the First Act of Repeal, the Act of Uniformity and all other religious laws that had been enacted while her half-brother Edward VI was king, with the exception of the Chantries Act.³² In 1554/5 the Second Act of Repeal undid the laws against the papacy that were enacted under Henry VIII, thus realigning England with Rome, although Mary I retained the title of Supreme Head of England’s church.³³ Mary I also reinstated the Heresy Acts that were repealed under Henry VIII and Edward VI, and thereby authorized heretics to be punished.³⁴ More than 300 Protestants were burned at the stake as a result.³⁵ The Marian Injunctions of 1553/4 revealed the kind of counter-reformation Mary I desired.³⁶

Elizabeth I (r. 1558–1603), daughter of Henry VIII and Anne Boleyn, endeavored to distance England from the Catholic influences preferred by her half-sister Mary I. Although Elizabeth I did not possess fervent religious beliefs, she embraced the principle of cuius regio, eius religio (“whose realm, his [her] religion”).³⁷ In the initial year of her reign she issued a proclamation forbidding “preaching” so as to mitigate religious acrimony pending the formulation of her religious policy.³⁸ The Act of Supremacy, passed in 1558/9, replaced the 1534 Act of the same name that had been enacted by Henry VIII and repealed by Mary I.³⁹ The 1558/9 Act removed England’s church from obedience to the pope for the last time, and once again recognized the English monarch as the head – in the 1558/9 Act, renamed “the Supreme Governor” – of the Church of England. As the Supreme Governor, the monarch had the power of “the visitation of the ecclesiastical state and persons, and for reformation, order, and correction of the same, and of all manner of errors, heresies, schisms, abuses, offences, contempts and enormities.”⁴⁰ The Act required that an “Oath of Supremacy” be sworn to the Supreme Governor by those persons occupying public or church offices. The oath read:

I, A. B., do utterly testify and declare in my conscience that the queen’s highness is the only supreme governor of this realm, and of all other her highness’s dominions and countries, as well in all spiritual or ecclesiastical things or causes, as temporal, and that no foreign prince, person, prelate, state or potentate hath or ought to have any jurisdiction, power, superiority, preeminence or authority ecclesiastical or spiritual within this realm; and therefore I do utterly renounce and forsake all foreign jurisdictions, powers, superiorities and authorities, and do promise that from henceforth I shall bear faith and true allegiance to the queen’s highness, her heirs and lawful successors, and to my power shall assist and defend all jurisdictions, preeminences, privileges and authorities granted or belonging to the queen’s highness, her heirs or successors, or united or annexed to the imperial crown of this realm. So help me God, and by the contents of this Book.⁴¹

Refusing to take the Oath of Supremacy could lead to the forfeiture of public office and death.⁴² The objective of laws such as the Oath of Supremacy was to establish an overall sense of order.⁴³

In the Act of Uniformity of 1559 Elizabeth I endeavored to ensure that the Church of England would be established along the same lines as it had been at the close of the reign of Edward VI. The Act repealed all of Mary I’s anti-Protestant legislation.⁴⁴ Along with the Act of Uniformity of 1558/9, the 1559 Act of Uniformity constituted what is commonly referred to as the Elizabethan Religious Settlement. As one celebrated scholar of religious toleration in England put it, the “doctrine set forth by the Elizabethan Settlement was, in essence, that conscience was free, although the public exercise of any but the established religion was not to be tolerated.”⁴⁵

Religious intolerance by law in England increased later in Elizabeth I’s reign. For instance, the Rome Act of 1571 made publishing papal bulls and referring to the monarch of England heretical acts of treason.⁴⁶ The pope’s excommunication of Elizabeth I in 1570 and the imprisonment of Mary, Queen of Scots, a Catholic, inspired this change in religious policy.⁴⁷ The 1580/1 Act to Retain the Queen’s Majesty’s Subjects in Their Due Obedience made it high treason to reconcile anyone or to be reconciled to “the Romish religion,” prohibited Mass under penalty of a fine of 200 marks and imprisonment for one year for the celebrant, and a fine of 100 marks and the same imprisonment for those who heard the Mass.⁴⁸ The Act also increased the penalty for not attending Anglican service to £20 a month, or imprisonment until the fine was paid or the offender attended Anglican service. The Jesuits Act of 1584/5 gave Catholic priests forty days to leave the country or swear the Oath of Supremacy.⁴⁹ Any Catholic priest who refused to leave or swear the oath could be charged with treason. Persons who harbored them, and persons who knew of their presence and failed to inform the authorities, would be fined and imprisoned, or where the authorities wished to make an example of them, they would be executed. Beginning in 1587 the failure of a “recusant” – an English Catholic who refused to attend Anglican service – to appear at trial resulted in a guilty verdict.⁵⁰

Catholics were not the only religionists Elizabeth I punished by law. The Elizabethan Settlement brought stability to Wales and England, but some Protestants called “Puritans” desired further change. The Puritans wished to purify the Church of England by returning to the simple and uncomplicated worship and way of life of the earliest Christians. They thought that the Elizabethan church remained too much like the Catholic Church. The 1593 Act Against Seditious Sectaries was the culmination of measures Elizabeth I took to repress Puritanism. The Act gave government authorities the power to execute those they believed to be Separatists. They also could severely punish those who refused to attend official church services.⁵¹

Additional anti-Catholic legislation was enacted after several Catholic recusants attempted to assassinate Elizabeth I.⁵² In 1593, the Act Against Recusants required recusants to remain within 5 miles of their homes; otherwise, their goods would be subject to forfeiture.⁵³ Public conversion was the only way to secure relief from the law.⁵⁴ The Act was passed “for the better discovering and avoiding of all such traitorous and most dangerous conspiracies and attempts that are daily devised and practiced against our most gracious sovereign lady” by those who “secretly wander and shift from place to place within this realm, to corrupt and seduce her majesty’s subjects, and to stir them to sedition and rebellion.”⁵⁵ The 1593 Act amended the 1580/1 Act to Retain the Queen’s Majesty’s Subjects in Their Due Obedience.

Laws against recusants continued to be enacted after the reign of Elizabeth I ended. For example, laws were passed in 1606 when James I (r. 1603–1625) was king that required recusants to receive Anglican communion at least once a year, barred Catholics from public office and some professions, and required them to abjure as a heresy in an Oath of Allegiance the doctrine that princes excommunicated by the pope could be deposed or assassinated.⁵⁶ The laws were a response to a failed assassination attempt against James I by a group of English Catholics who sought to restore the Catholic monarchy to England after decades of persecution against Catholics.⁵⁷

Elizabeth I had died without issue, and the House of Tudor to which she belonged was replaced by the House of Stuart. James I, Elizabeth I’s cousin, was the first of the Stuart monarchs. James I was baptized Catholic but raised Presbyterian and leaned Anglican during his rule. His wife, Anne of Denmark, had converted from Lutheranism to Catholicism. The meaning and place of religion in England began to change under the Stuarts. Three subsequent Stuart monarchs were likewise either married to a Catholic or were Catholic themselves, which put them in a difficult position as head of the English church.⁵⁸

Charles I (r. 1625–1649), James I’s son, was beheaded in 1648/9 for treason. The execution was the apogee of conflicts between the Royalists and the Parliamentarians during the English Civil War. England was ruled by the Rump Parliament between 1649 and 1653. Oliver Cromwell, a Puritan, forcibly took control of England as Lord Protector for life in 1653. He died in 1658, and his son lasted less than a year as his successor.⁵⁹ In 1650 the Rump Parliament had repealed most of the coercive religious apparatus mandated by the Elizabethan Act of Uniformity and subsequent penal laws. Congregationalist, Presbyterian, and Baptist churches flourished as a result.⁶⁰ Cromwell likewise was more tolerant of religious differences than the Crown had been, with the notable exception of his intolerance of Catholics and Episcopalians.⁶¹

Charles II (r. 1660–1685), grandson of James I, who reigned after the monarchy was restored in 1660, mandated in the Corporation Act that anyone holding a public office must swear an oath to support the king and acknowledge the sinfulness of not doing so.⁶² While on its face not a law about religious toleration, the law effectively barred from public office anyone who thought the king or the Church of England was heretical. On the ecclesial side, a similar statute was enacted mandating uniformity and consent to the Book of Common Prayer on the part of all ministers.⁶³

Charles II’s personal religious beliefs were complicated, but he did try to establish at least some measure of toleration for dissenting, Puritan, Quaker, and Catholic groups. His Declaration of Indulgence of 1672 decreed in pertinent part:

And further, we declare that no person shall be capable of holding any benefice, living, or ecclesiastical dignity or preferment of any kind in this kingdom of England, who is not exactly conformable. We do in the next place declare our will and pleasure to be, that the execution of all and all manner of penal laws in matters ecclesiastical, against whatsoever sort of non-conformists, or recusants, be immediately suspended, and they are hereby suspended.⁶⁴

Charles II’s unilateral relaxation of the penal laws was not well received by Parliament, as the Test Act of 1673 reaffirming the mandate of allegiance to the Church of England made clear. The Test Act reenacted the requirements of the earlier Corporation Act. For example, anyone holding public office was directed to visit a local Anglican parish and receive communion:

That all and every person or persons that shall bear any office or shall receive any pay, salary, fee or wages, by reason of any patent or grant from his Majesty, or shall have command or place of trust from or under his Majesty take the several oaths of supremacy and allegiance and the said respective officers aforesaid shall also receive the Sacrament of the Lord’s Supper, according to the usage of the Church of England, at or before the first day of August in the year of our Lord one thousand six hundred and seventy-three, in some parish church, upon some Lord’s day, commonly called Sunday.⁶⁵

To root out “occasional conformers” who might take the mandated communion once a year and nevertheless continue in their papist ways, Parliament added the following oath that all officeholders were required to swear: “I, A. B. do declare, that I do believe that there is not any transubstantiation in the sacrament of the Lord’s Supper, or in the elements of Bread and Wine, at or after the consecration thereof of any person whatsoever.”⁶⁶

The “Clarendon Code” was the appellation affixed to four laws that targeted nonconformists: the Corporation Act (1661), the Act of Uniformity (1662), the Conventicle Act (1664), and the Five-Mile Act (1665).⁶⁷ The Corporation Act permitted only members of the Church of England to hold public office.⁶⁸ The Act of Uniformity regulated the form of worship in the Church of England after the Restoration of the monarchy and established the foundations of the modern Anglican church. The Act required all ordained clergy to follow the Book of Common Prayer, repudiate the Solemn League and Covenant of 1643, forswear the taking up of arms against the Crown, and adopt the liturgy of the Church of England.⁶⁹ The Conventicle Act specified that no more than five members of religions other than the Church of England could gather for religious purposes.⁷⁰ The Five-Mile Act forbade nonconformist ministers from residing within 5 miles of a church from which they had been expelled unless they swore an oath to obey the Book of Common Prayer.⁷¹

Fearing that the new Catholic king, James II (r. 1685–1688), and his son James Francis would establish a Catholic dynasty, a coalition of Anglican and other Protestant sects encouraged William of Orange and James II’s daughter Mary (William’s wife) to invade England and seize the throne. The Glorious Revolution of 1688–1689 resulted in the enactment of a number of the most famous laws in English history, including the Bill of Rights of 1689, the Crown and Parliament Recognition Act of 1689, the Mutiny Act of 1689, the Quakers Act of 1695/6, the Act of Settlement of 1701, and the Act of Union of 1707.⁷² Most important for present purposes was the Act of Toleration of 1689, which conferred upon nonconformists the right to worship in public places, although significant restrictions remained, such as those barring nonconformists from holding public office and requiring them to pledge oaths of allegiance and supremacy and to reject the doctrine of transubstantiation.⁷³ Toleration of even a limited sort was not extended in the Act to Catholics, Unitarians, and atheists.

In summary, laws about religion mattered in England. Indeed, England enacted more laws of consequence about religion than any nation in the Early Modern period in large part because of England’s break from the Catholic Church during the reign of Henry VIII and the inconsistent relationship that Henry VIII’s successors had with that church.⁷⁴ Although a young Edward VI maintained Protestant control of England, his reign was short-lived and his successor, Mary I, tried to restore England to the Catholic fold, going so far as to reinstate penalties against non-Catholics that were severe enough to earn her the moniker “Bloody Mary.” Her reign was likewise too brief to accomplish her objective. The ascension of Elizabeth I and her lengthy reign ensured that England would remain Protestant. At the outset of Elizabeth I’s reign, the laws against non-Protestants were scarce as Elizabeth I was a relatively tolerant monarch. However, repeated assassination attempts and public disputes with Catholics in the realm led the queen to push for laws that targeted Catholics and punished them for their faith. The Glorious Revolution of 1688 and the Act of Toleration of 1689 enacted during the reign of William III and Mary II cemented England’s anti-Catholic legal heritage prior to the American Revolution.

Laws about religion mattered in English America too. The legal history of colonial Maryland to which this book now turns will reveal that English America was not immune from religious intolerance by law. The impact of law on religion in Maryland will be followed by explorations of Rhode Island, Pennsylvania, Connecticut, and Massachusetts. The Conclusion to the book will address whether there was a unified history of religious toleration in colonial America, or whether the individual colonies were too different for that to have been possible.