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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.


In the United States Court for China.

At Shanghai, May, 1907.


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:

Section 4086. Jurisdiction in both criminal and civil matters shall, in all cases, be exercised and enforced in conformity with the laws of the United States, which are hereby, so far as is necessary to execute such treaties, respectively, and so far as they are suitable to carry the same into effect, extended over all citizens of the United States in those countries, and over all others to the extent that the terms of the treaties, respectively, justify or require. But in all cases where such laws are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies, the common law and the law of equity and admiralty shall be extended in like manner over such citizens and others in those countries; and if neither the common law, nor the law of equity or admiralty, nor the statutes of the United States, furnish appropriate and sufficient remedies, the ministers in those countries, respectively, shall by decrees and regulations which shall have the force of law, supply such defects and deficiencies."

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Since neither the general laws of the United States nor the laws relating in particular to extraterritorial jurisdiction contain specific provisions on the administration of estates, and since the minister has issued no regulations on the subject, it follows that the only source from which jurisdiction might be drawn was the common law.

The question now presents itself, was the law of probate of wills and the administration of estates included in the common law

which was extended to China by the statute?

The term common law” has been interpreted by this court to mean: Those principles of the common law of England and those statutes passed in aid thereof, including the law administered in the equity, admiralty and ecclesiastical tribunals, which were adapted to the situation and circumstances of the American colonies at the date of transfer of sovereignty, as modified, applied and developed generally by the decisions of the State courts and by the decisions of the United States courts, and incorporated generally into the statutes and constitutions of the States. United States v. Biddle, March 6, 1907.

In order to determine whether the law governing the administration of estates was covered by the common law as thus construed it will be necessary to review the history of the law on the subject with a view to ascertaining, first, whether it was a part of the common law of England and the statutes passed in aid thereof, and, if so, second, whether it has been introduced into the United States as the basis of the American law of probate. On account of the meagerness of the library available to the court at the present time our investigation will be mainly confined to accounts contained in the commentaries of Blackstone and Kent, and Judge Woerner's work on “ The American Law of Administration." The law governing the administration of estates in England is com


monly referred to by text-writers and judges as a part of the ecclesiastical law, which was administered exclusively in the ecclesiastical courts. Though there is warrant in the law for this conclusion by reason of the fact that ecclesiastical courts exercised almost complete jurisdiction over estates of deceased persons for a long period of time in England, yet it will be found upon a close examination of the history of the law that the subject was in fact covered by the common law, that estates were administered in the courts of common law, prior to the establishment of the ecclesiastical courts and that the common-law principles and procedure of the common-law courts appeared in the history of the administration of estates through all the centuries, and have exercised a profound influence on the American law of administration.

With us in England [says Blackstone] this power of bequeathing is coeval with the first rudiments of the law: for we have no traces of memorials of any time when it did not exist.

But we are not to imagine that this power of bequeathing extended originally to all a man's personal estate. On the contrary, Glanvil will inform us that by the common law, as it stood in the reign of Henry the Second, a man's goods were to be divided into three equal parts: of which one went to his heirs or lineal descendants, another to his wife, and a third was at his own disposal.

The shares of the wife and children were called their reasonable parts.

This continued to be the law of the land at the time of magna charta.

In the reign of King Edward the Third, this right of the wife and children was still held to be the universal or common law.

In case a person made no disposition of such of his goods as were testable, whether that were only part or the whole of them, he was, and is, said to die intestate; and in such cases it is said, that by the old law the king was entitled to seize upon his goods, as the parens patriæ, and general trustee of the kingdom. This prerogative the king continued to exercise for some time by his own ministers of justice; and probably in the county court where matters of all kinds were determined; and it was granted as a franchise to many lords of manors, and others, who have to this day a prescriptive right to grant administration to their intestate tenants and suitors, in their own courts baron, and other courts, or to have their wills there proved, in case they made any disposition. Afterwards, the crown, in favour of the church, invested the prelates with this branch of the prerogative; which was done, saith Perkins, because it was intended by the law that spiritual men are of better conscience than laymen, and that they had more knowledge what things would conduce to the benefit of the soul of the deceased. The goods therefore of intestates were given to the ordinary by the crown;

And, as he had thus the disposition of intestates' effects, the probate of will of course followed. (Book II,


p. 491.)

Continuing in chapter seven of the third book of his commentaries, Blackstone, in discussing the jurisdiction of ecclesiastical courts, says:

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Testamentary causes are the only remaining species belonging to the ecclesiastical jurisdiction; which, as they are certainly of a mere temporal nature, may seem at first view a little oddly ranked among matters of a spiritual cognizance. And, indeed, they were originally cognizable in the king's courts of common law, viz., the county courts; and afterwards transferred to the jurisdiction of the church by the favour of the crown as a natural consequence of granting to the bishops the administration of intestates' effects.

At what period of time the ecclesiastical jurisdiction of testaments and intestacies began in England, is not ascertained by any ancient writer.

It appears that the foreign clergy were pretty early ambitious of this branch of power. fell within the jurisdiction of the spiritual courts by the express words of the charter of King William I, which separated those courts from the temporal. And afterwards, when King Henry I, by his coronation-charter, directed that the goods of an intestate should be divided for the good of his soul, this made all intestacies immediately spiritual causes, as much as a legacy to pious uses had been before. This, therefore, we may probably conjecture, was the æra

* when the king, by the advice of the prelates, and with the consent of the barons, invested the church with this privilege. (Book III, p. 95–7.)

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As far as we are able to ascertain, these deductions of Blackstone are based upon the rulings of the courts in the Hensloe Case (Coke's Reports, Part IX, 36 b) and in Snelling's Case (Coke's Reports, Part V, 32 b).

The Court in Snelling's Case held that: If the Ordinary took the goods into his possession, he was chargeable by the common law. And the statute of West. cap. 19 was made in affirmance of the common law.

The history of the law, as recited in the Hensloe Case, seems to have met the approval of the annotator of Coke's Reports, who, in commenting upon the same, uses the following language:

It appears to have been a matter of great controversy, to whom the probate of wills and granting of administration originally belonged, and whether these matters were entirely of ecclesiastical cognizance; the better opinion seems to be that the probate of testaments did not originally belong to the ecclesiastical jurisdiction.

Again he says: Wills may be proved, i. e., recorded in any of the courts of common law at Westminster and so likewise in the courts of equity, as the chancery or exchequer; so also in the chamber of the city of London, and divers other cities and towns; and many lordships and manors have an original right of proving wills. And upon the whole it appears, clearly, that the claim and practice of the spiritual courts in this particular was originally a mere usurpation.

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