Proceedings in respect

to the flag.

"Mr. Endicott was called into question about defacing the cross in the ensign." The business was taken up with great solemnity. A committee, composed of four of the Magistrates and of one freeman from each town, was directed to deliberate and report upon it. "They found his offence to be great, namely, rash and without discretion, taking upon him more authority than he had, and not seeking advice of the Court, &c.; uncharitable, in that he, judging the cross, &c. to be a sin, did content himself to have it reformed at Salem, not taking care that others might be brought out of it also; laying a blemish also upon the rest of the Magistrates, as if they would suffer idolatry, &c., and giving occasion to the state of England to think ill of us; — for which they adjudged him worthy admonition, and to be disabled for one year from bearing any public office; declining any heavier sentence, because they were persuaded he did it out of tenderness of conscience, and not of any evil intent." The sentence of incapacity was accordingly passed. The reasons assigned for it disclose a singular embarrassment in the minds of the committee. They were evidently perplexed between their apprehension of the effect in England of Endicott's act, and a consciousness of sympathy, on their own part and on that of their constituents, with the feelings which had prompted it. Nor is it unreasonable to believe, that, at this important juncture, political .considerations, quite as much as religious which could more conveniently be avowed, occasioned the scruples about the use of the royal flag.

The question was not to be immediately settled. For the present it was postponed, "it being propounded to turn the cross in the ensign to the red and white rose, &c., and every man was to deal with his neighbors, to still their minds who stood so stiff for the cross, until we should fully agree about it, as was expected, because the

1 Winthrop, I. 158. Mass. Col. Rec., I. 146.

ministers had promised to take pains about it, and to write into England, to have the judgments of the most wise and godly there." In the course of the year, a compromise was made. "It was referred to the Military Commissioners to appoint colors for every company, who did accordingly, and left out the cross in all of them, appointing the king's arms to be put into that of Castle Island."2 At Castle Island, the royal colors would be seen by the shipping, which accordingly would be less likely to carry a damaging report to England. The castle, nevertheless, continued to assert the local dignity. "A ship belonging to Sir Thomas Wentworth, deputy of Ireland," was coming into Boston harbor, when "the lieutenant of the fort went aboard her, and made her strike her flag." The master complained to the Magistrates, who, on the ground that "the fort had then no colors abroad," directed their officer to make an apology.3

proceedings.

1636.

The tendency to well-defined and settled institutions was indicated by several measures adopted towards the close of Haynes's administration. The shape and Legislative limits to be assumed by the Colony were provided for by a rule empowering the majority of the March 3. Magistrates "from time to time to dispose of the sitting down of men in any new plantations," and forbidding new settlements to be made without their consent. "Whereas the most weighty affairs of this body" were now "brought into such a way and method as there would not henceforth be need of so many General Courts to be kept as formerly," their number was reduced to two in each year.5 It was necessary to lighten the pressure of judicial duty upon the Magistrates, and in addition to quarterly courts, to be held by the whole board in Boston, local courts were appointed to be held also four times in each year,

1 Winthrop, I. 160.

2 Ibid., 180.

3 Ibid., 186.

4 Mass. Col. Rec., I. 167.

5 Ibid., 169. This usage continued till 1831, when one annual session was substituted by an amendment of the State Constitution.

the places being Ipswich, Salem, Newtown, and Boston. These tribunals were to consist of "such Magistrates as should be dwelling in or near the said towns, and such other persons of worth as should from time to time be appointed by the General Court" from a list of candidates to be nominated by the several towns within the judicial jurisdiction. They had power to "try all civil causes whereof the debt or damage should not exceed ten pounds, and all criminal causes not concerning life, member, or banishment." Each of them was constituted of five judges, and an appeal lay from them to the next quarterly court of Magistrates. Another improvement of the legal administration had recently been made, in the introduction of presentments by a grand jury.2

es.

1635. Sept. 1.

Formation

A rule was adopted to control the formation of churchTo reflecting minds their theoretical independence, both of each other and of any authority over of churches. them all, could not have failed to present itself in new lights from the time when the franchise of the commonwealth was attached to church-membership. Persons were received to the several churches by the consent of the officers and members, on a relation of their religious experience, or other satisfactory evidence of their Christian character. They were then admitted to the Lord's Supper, and their children to baptism. Thus it belonged to the several churches to confer the franchise of the state, for no person could be a freeman without being a church-member; and though, to make a man a freeman, a form had still to be gone through with, an oath to be taken, and a vote of the General Court to be passed, yet, in point of fact, it would very rarely happen that a communicant in a church would fail to be a freeman of the Company.3

This being so, the question must have soon occurred, what safeguard for political integrity existed at the source

1 Mass. Col. Rec., I. 169.

2 Winthrop, I. 198.

3 See Cotton's Answers to "Certain Proposals," &c., in Hutchinson, I. 435.

of political power. Who was to keep the keepers? That by the law of franchise a close relation had been established between church and state was undeniable, however little of the extent of that relation had been discerned at the time. A law forbidding the formation of any church without the public approbation conveyed through the Magistrates, would tend to secure an accordance between the sentiments of the church-member and what were esteemed the vital principles of the commonwealth. It would thus be but a fit complement of the previous enactment which had invested the church-member with political power. The freemen intended that their body should be a numerous corporation. But they intended that it should be also a close and self-renewing corporation. They saw not how in any other way it could achieve the beneficent purposes for which it was created. If a church should be formed of persons alien to those purposes, it would subsist in the commonwealth only as a nursery of internal foes. Amidst the public dangers of the period, the subject could not fail to force itself upon attention; and, after a year's consideration, a 1636. law was passed, the special intent of which is March 3, manifested by its last provision. It was as follows:

"Forasmuch as it hath been found by sad experience, that much trouble and disturbance hath happened both to the church and civil state by the officers and members of some churches which have been gathered within the limits of this jurisdiction in an undue manner, and not with such public approbation as were meet, it is therefore ordered, that all persons are to take notice that this Court doth not, nor will hereafter, approve of any such com

1 "This Court [March 4, 1635] doth entreat of the elders and brethren of every church within the jurisdiction, that they will consult and advise of one uniform order of discipline in the churches, agreeable to the Scriptures,

VOL. I.

37

and then to consider how far the Magistrates are bound to interpose for the preservation of that uniformity and peace of the churches." (Mass. Col. Rec., I. 142, 143.)

panies of men as shall henceforth join in any pretended way of church-fellowship, without they shall first acquaint the Magistrates, and the elders of the greater part of the churches in this jurisdiction, with their intentions, and have their approbation herein. And further it is ordered, that no person, being a member of any church which shall hereafter be gathered without the approbation of the Magistrates and the greater part of the said churches, shall be admitted to the freedom of this commonwealth."

Functions

of towns.

Another measure of the same General Court was a definition of the powers of towns, giving the first legis lative authority to that municipal system of New England which has survived with such happy results to the present day. In consideration of the fact, that "particular towns have many things which concern only themselves, and the ordering of their own af fairs, and disposing of business in their own town," it was "ordered, that the freemen of every town, or the major part of them, shall only have power to dispose of their own lands and woods, with all the privileges and appurtenances of said towns, to grant lots, and make such orders as may concern the well-ordering of their own towns, not repugnant to the laws and orders established by the General Court." They were authorized to impose fines "not exceeding the sum of twenty shillings," and "to choose their own particular officers, as constables, surveyors for the highways, and the like." To keep these communities compact, for their greater security, it had beSept. 3. fore been ordered, "that hereafter no dwellinghouse should be built above half a mile from the meetinghouse, in any new plantation"; 2 and the rule was soon after extended to all the towns in the jurisdiction.3 In the following year, the right of representation was roughly apportioned to the towns, according to the amount Sept. 8. of their population. "It was ordered, that here

1635.

1636.

1 Mass. Col. Rec., I. 172.

2 Ibid., 157.

3 Ibid., 181.