Law of England which was introduced into the United States at the date of the change of sovereignty. As above pointed out, at the time we derived our common law from England, the Ecclesiastical or Church Courts had exclusive jurisdiction of causes relating to marriage and divorce. It was a dogma of the church that marriage was a divine institution, a sacrament not to be dissolved by divorce unless by direction of the head of the church. Marriage was, therefore, within the control of the Church Courts, and the Civil Courts had no jurisdiction. Whilst the principles of the Common Law which were applicable to the colonies were introduced into the United States and became the common law of the various states, yet not all of the Ecclesiastical Law was suited to the conditions and wants of the people. There were no Ecclesiastical Courts to administer the Ecclesiastical Law, and Courts of equity and common-law jurisdiction had no jurisdiction to hear and determine divorce causes until it was conferred upon them by statutes, and the statutes on the subject subsequently passed did not confer the full jurisdiction of the Ecclesiastical Courts upon the State Courts, but only jurisdiction to grant divorce and annul marriage in certain cases specified therein. The Ecclesiastical Law as a whole was not, therefore, adopted as a part of our common law. The jurisdiction conferred by the statutes was special and limited to the causes for divorce enumerated therein. Bishop in his work on Marriage and Divorce contends, that the fact that there were no courts in the colonies in which to administer the law of divorce as established in the Ecclesiastical Courts, is not a sufficient reason to warrant the conclusion that the common law of divorce did not follow the colonists to America. He says: As just stated in brief, English colonists to an uninhabited country carry with them to their new locality their English laws, except such as are inapplicable to their altered relations and circumstances. This general doctrine, in its applicability to this country, is every where recognized by our Courts, and in most of the States it has been confirmed either in the written Constitution or by legislative enactment. Nor is it material to this doctrine in what tribunal, in England, a law in question is there administered. Since every law from the mother country presents itself to a colony separated from the court of its origin, never, in reason, can its adoption or rejection depend on the name or constitution of such Court. In accord with this view is the language of the books, "all laws," and, though in some of the American cases the term "Common Law" is used, the broad meaning of the term, not its narrow and technical one, is intended. Moreover, the Courts of England have specifically held that the matrimonial law of the ecclesiastical tribunals is a branch of the law which the colonists take with them. The position of Professor Bishop, however, is controverted by Chancellor Sanford in the case of Burtis v. Burtis (1st Hopkin's Chancery, 557 New York, 14 American Decisions 563). This is the leading case on the question now under consideration, and Chancellor Sanford treated. the subject in an exhaustive manner. Since this Court is inclined to adopt the view announced by the Learned Chancellor, his opinion will here be quoted extensively. He says: The colony of New York never had any court possessing jurisdiction of matrimonial causes or power to grant divorce. No statute defining the causes of divorce or authorizing divorces in any case whatever was ever enacted by the legislature of the colony. Some special applications for divorces were made to the colonial legislature, but all such applications were refused. The Governor of the colony, with the consent of the Council, had power to establish courts of justice and all the courts of the colony derived their origin from this source of authority; but no court having cognizance of matrimonial causes or divorces was ever established in the colony. No court of the colony exercised very much jurisdiction and no law concerning divorce was ever enacted by the colonial legislature. It thus appears that the law of England concerning divorces and matrimonial clauses was never adopted by the colony of New York. It was not adopted in fact or in practice, and it was never the law of the colony. By the constitution of the State adopted in 1777, such parts of the Common Law of England and the Statute Law of England and Great Britain and of the Acts of the legislature of the colony as together formed the law of the colony on the 19th day of April 1775, were declared to be the law of this State. The law of the colony was thus adopted as the law of the State. The law of England concerning divorces and matrimonial causes not forming a part of the law of the colony, did not become the law of the State. I cannot admit that we have any other code on the same subject, and that the laws of England concerning divorces are also laws of this State. The English law concerning divorces and causes of divorce as it exists now, and as it existed while this State was a colony, is chiefly the Ecclesiastical Law and not the Common Law of that country. It is administered by judges and courts whose jurisdiction has never existed either in the State or the colony of New York, and it was evidently regarded by our ancestors of the colony and of the State as no part of the common law which they adopted. Our statutes are, clearly, original regulations, intended to authorize divorces in cases in which no divorce could before he obtained. They define the causes for which divorces shall be granted, they give jurisdiction of those cases in this Court, and they give no other jurisdiction. The specified cases are, with some differences, causes of divorce by the laws of England; but these statutes are evidently founded on the supposition that the causes of divorce which they define, were not causes of divorce by any pre-existing law in force in this State. In every view of these acts of our legislature they are substantive laws, authorizing divorces in the cases which they specify, and not authorizing divorce in any other case or for any other cause. In our view the reasoning of the learned Chancellor as above set forth is entitled to greater weight than the ingenious and plausible argument of Professor Bishop and appears to be better supported by the authorities. That no Court has a right to take jurisdiction of matters relating to the status of marriage unless such jurisdiction has been specially conferred by statute is a principle firmly established in American law and universally applied by American Courts. "A divorce cannot be had except in that Court upon which the State has conferred jurisdiction, and it can be had for those causes only, and with those formalities only, which the State has by statute prescribed." (Dennis v. Dennis, 68 Connecticut, 186; De Meli v. De Meli, 67 Howard Pr., N. Y., 20.) In view of this rule and the fact that all of the States have dealt with the subject of matrimonial causes originally and with such striking lack of uniformity we are of opinion that the law of divorce as administered by the Ecclesiastical Courts of England has not been adopted generally by American tribunals as the basis of their decisions on the subject of divorce, and has not formed the substratum of the law of divorce as enacted by the various States; hence we conclude that said Ecclesiastical Law did not become a part of the Common Law within the meaning of that term as it has been interpreted by this Court. 4. This leaves for consideration the question whether the regulations of the Minister on the subject of divorce conferred jurisdiction upon this Court to hear and determine matrimonial causes. Without entering upon a discussion of the question whether Congress has the constitutional right to delegate its legislative powers to a United States Minister to a foreign country it is sufficient for our purposes to inquire if our Minister has actually promulgated rules and regulations prescribing causes for divorce in China. The regulations of the Minister on this subject are found in Section VII of the Consular Court Regulations of 1864, and are as follows: 46. SECTION VII, DIVORCE. Libels for divorce must be signed and sworn to before the Consul, and on the trial each party may testify. 47. The Consul, for good cause, may order the attachment of libeller's property to such an amount and on such terms as he may think proper. 48. He may also, at his discretion, order the husband to advance to his wife, or pay into Court, a reasonable sum to enable her to prosecute or defend the libel, with a reasonable monthly allowance for her support, pending the proceedings. 49. Alimony may be awarded or denied the wife on her divorce at his discretion. 50.-Custody of the minor children may be decreed to such party as justice and the children's good may require. 51.- Divorce releases both parties, and they shall not be remarried to each other. 52. Costs are at the discretion of the Consul. It will be seen from the foregoing regulations that they do not undertake to prescribe the causes for which divorce may be granted, but purport to be little more than rules of procedure. It thus appears (a) that our treaties with China contain no specific provision on the subject of divorce. (b) That the statutes of the United States which have been extended to China are also silent on this subject. (c) That the Common Law in force in China, does not embrace the subject of matrimonial causes, and (d) that the Minister has not issued regulations prescribing grounds on which divorce or judicial separation shall be granted. In view of the foregoing facts, and the rule universally adopted by the Courts of the United States that Courts have no jurisdiction in matrimonial causes except when specifically conferred by statute, we hold that the United States Court for China is without jurisdiction to hear and determine matrimonial causes. The demurrer is sustained and plaintiff's petition is dismissed with costs. Signed: L. R. WILFLEY, Judge of the United States Court for China. RE PROBATE OF THE WILL OF JOHN PRATT ROBERTS. In the United States Court for China. At Shanghai, May, 1907. OPINION. Mrs. Rosalie Adelaide Jackson has filed in this court a document purporting to be the last will and testament of her father, Captain John Pratt Roberts, an American citizen who resided in Shanghai at the date. of his death, and she has asked that the same be admitted to probate. The petition raises the question whether this court has jurisdiction in the matter of the administration of estates of Americans decedent in China. In order to determine this question it will be necessary to inquire into the probate jurisdiction of the American consular courts in China prior to the establishment of this court, because the latter has no jurisdiction that was not possessed by the former. Section 1 of the Act of June 30, 1906, creating this court, provides that it shall have exclusive jurisdiction in all judicial proceedings whereof jurisdiction may now be exercised by the United States consuls and ministers by law and by virtue of treaties between the United States and China, except in civil cases where the amount involved does not exceed five hundred dollars gold and in criminal cases where the punishment does not exceed a fine of one hundred dollars or sixty days' imprisonment or both. In such cases the consuls retain jurisdiction. There can be no doubt that China intended by the treaties of extraterritoriality to concede to the United States complete jurisdiction over Americans resident in China, and over their property located in China; and it is equally certain that Congress, by enacting the statute of June 22, 1860, pursuant to the terms of the treaties and for the purpose of carrying the same into full force and effect, meant to extend to China a body of laws adequate to the needs of American citizens resident therein. The treaty of 1858 provides in Article XXVII as follows: All questions in regard to rights whether of property or of person, arising between citizens of the United States in China shall be subject to the jurisdiction and regulated by the authorities of their own Government. A portion of the Act of Congress of 1860 embodied in Revised Statutes, Section 4085, enacted for the purpose of carrying into full effect the provisions of the treaties, provides in respect to ministers and consuls that Such officers are also invested with all the judicial authority necessary to execute the provisions of such treaties, respectively, in regard to civil rights, whether of property or person. This brings us to a consideration of the question whether Congress extended to China a system of laws relating to the administration of estates which the above named officers were to apply. The answer to this question is found in the provisions of Revised Statutes, Section 4086, which reads as follows: |