and the source of all positive laws; it is nothing but the natural reason, in so far as it governs all men."

1

Finally, these principles, "a ray of the divinity descended upon man," fix the limits of liberty, of sociality, of the empire of humanity, and consequently of the sovereignty to which they give life.

ART. III.-BIOGRAPHICAL SKETCH OF WILLIAM STOUGHTON.

We give below a brief sketch of one of the early judges of the supreme court of Massachusetts; and, as opportunity may permit, similar sketches of other members of that court may be expected. The sketches, however, must be exceedingly brief, since the materials, from which to fill up the detail of their lives or characters, are not accessible; and even the names of many of the judges have been preserved only in the records of their judicial proceedings, and are known to the patient antiquary alone.

William Stoughton was born at Dorchester in 1631. He was the son of the distinguished Israel Stoughton, who was the commander in chief of the colony forces in the Pequod war, and afterwards held a colonel's commission in the parliamentary army in England.

He was graduated at Cambridge in 1650, and was educated for the ministry. After finishing his education here, he went to England and obtained a fellowship in the university of Oxford. While in England, he preached for some time in the county of Sussex, and after his return to Massachusetts in 1662, continued to pursue his profession, although he never was settled over any church. He was an eminent and successful preacher, and in 1668 preached the annual election sermon, which was pronounced, at the time,

1 De Ferriere: Prolegomene sur la Coutume de Paris.

to have been "among the very best delivered on that occasion." The title of this sermon was, "New England's true interest not to lie."

In 1671, upon being elected one of the assistants, he discontinued preaching, and from that time became an active public officer, being re-elected from year to year as an assistant, until the dissolution of the charter in 1686. In 1677, he was the colony agent in London, and upon the revocation of the old charter, and the appointment of Dudley as president of New England, he was commissioned as deputy president, and one of Dudley's council.

In July, 1686, he was placed at the head of the several courts in the colony, by an order of the president and council, which office he held until the arrival of Andros.

He was named in the commission of Andros, as one of his council, which office, unfortunately for his popularity, he accepted, and thereby lost the confidence of the people, while he was unable to obtain that of the tyrant he was content to serve.

He was, however, continued upon the bench under the new organization of the courts under Andros, but in a subordinate place, as Dudley, the late president, was made the chief justice.

Upon the breaking out of the revolution, which deposed Andros, the name of Stoughton is found at the head of those, who demanded of the governor a surrender of the government, and he became one of the council who assumed the administration, until the people could act upon the subject. The old charter was then resumed, and continued to be the form of government until 1691, when the charter of William and Mary was granted, and during this interval, Stoughton had not so far regained his popularity as to be elected one of the assistants. Under the new charter he was appointed the first lieutenant governor of the province, and from that time till his death, was constantly in the government, and during a part of the time, at the head of it.

He certainly must have possessed no ordinary degree of supple shrewdness as a politician, to sustain himself in office under administrations, so opposed to each other in form and principle, as that of the popular elective constitution of the old charter, the arbitrary and tyrannical viceroyalty of Andros, and the moderate but mixed powers delegated by the new charter to the royal governor.

Governor Phipps arrived here in the midst of the excitement and alarm on the subject of witchcraft, and being himself a full believer in the existence of that crime, without waiting for a meeting of the popular branch of the government, by whose aid alone, according to the charter, courts could be established, he constituted a court of oyer and terminer, for the express purpose of trying those charged with witchcraft, and placed lieutenant-governor Stoughton at the head of this commission. He was a sincere believer in the existence of the crime he was appointed to investigate, and although honest in his convictions of duty, the unfortunate subjects of his jurisdiction had little cause to congratulate themselves upon the manner in which he executed his commission. He was assiduous in his endeavors to detect and punish the offenders, and in so doing prostituted the forms of justice to a series of judicial murders, unparalleled in our history.

In 1692, the superior court under the charter was organized, and Mr. Stoughton was made the chief justice, while he retained his offices of lieutenant governor and counsellor. In 1694, upon governor Phipps leaving for England, he became the acting governor and commander in chief of the province troops, and held this place till the arrival of lord Bellamont, in May 1699. Lord Bellamont left the government in 1700, and Stoughton again became the acting chief magistrate, and continued such till his death, July 7, 1701.

How he was able to perform the duties of his various offices with any degree of consistency, is not altogether appa

rent. No other chief justice of the court was appointed during his life, and he must have held the offices of acting governor, commander in chief, counsellor and chief justice, at the same time; the first by appointment from the king, the second by election of the people, and the last by appointment of the governor and council. He died a bachelor, and atoned for the bigotry of his opinions in life, by his benefactions to the cause of literature at his death. He was the founder of "Stoughton Hall," which he erected for the use of Harvard college in his life time, and left to that college by his will, a further donation of a thousand pounds.

He was a well educated man, and notwithstanding his bigoted notions upon some subjects, was a discreet magistrate, and so far as honesty of intentions extend, an upright judge. He possessed great influence in the colony, and through a long life, took a leading part in the administration of its affairs.

His death was greatly lamented, and he was buried "with great honor and solemnity, and with him much of New England's glory."

An epitaph in Latin upon his tomb stone, records his virtues, and is still legible in the church-yard of Dorchester, where he lies buried.

E. W.

ART. IV. THE REQUISITES TO DOWER, AND WHO ARE CAPABLE OF IT.

To the consummation of the title to dower, there are three requisites; marriage, seisin of the husband, and his death;' for it is a maxim of law, ubi nullum matrimonium ibi nulla dos.

1 Co. Litt. 31. a.

Dower attaches upon all marriages not absolutely void, and existing at the death of the husband; it belongs to a wife de facto, whose marriage is voidable by decree, as well as to a wife de jure. It belongs to a marriage within the age of consent, though the husband dies within that age. Although a woman cannot consent before twelve years of age, nor a man before fourteen, yet this inchoate and imperfect marriage (from which either of the parties may at the age of consent disagree), shall entitle the wife to dower; therefore it is accounted in law, after the death of the husband, legitimum matrimonium quoad dotem'. It has been stated, that though a marriage be voidable, yet if it be not avoided in the life-time of the parties, it cannot be annulled after; and if a marriage de facto be avoidable by divorce, whereby the marriage might have been dissolved, and the parties freed a vinculo matrimonii, yet, if the husband die before any divorce, then (for that it cannot be annulled), the wife de facto will be endowed.❜

A woman married in Scotland, not in evasion of the laws of England, is dowable of lands in England, and the validity of such marriage is triable by a jury. The plea in this case was ne unques accouple, and it was held that the replication need not state by way of venue, that the marriage was consummated in any place in England. In actions for dower, the fact of marriage was not tried by a jury, but only the bishop's certificate upon the plea of ne unques accouple in loyal matrimony; because the direct jurisdiction, in questions concerning the legality of marriage, belonged to the ecclesiastical courts, and the sentences of those courts on this head, were in general conclusive to the temporal courts.* In Ilderton v. Ilderton, the marriage having been celebrated out of any diocese, could not be inquired into and certifica

11 Inst. 36 a. 1 Cru. Dig. 121. Ilderton v. Ilderton, 2 H. Bl. 145.

21 Inst. 336. 1 Cru. Dig. 164. Robins v. Crutchley, 2 Wilson,