ment was obliged to interfere and take the power of administration entirely from the church and confer it upon those who were disposed to a faithful execution of the trust. This produced the statutes of 31 Edward III, c. 11, and 21 Henry VIII, c. 5, from which we have copied the law of granting administration in this country.

Before the Revolution, the power of granting letters testamentary and letters of administration resided in New York, in the colonial governor, as judge of the prerogative court, or court of probates of the colony. It was afterwards vested in the court of probates. (2 Commentaries 408-9.)

The learned chancellor then proceeds to give an account of the development of the probate courts, and the law of administration in New York, and indicates that the same were modelled after and based upon the principles of the common law.

Judge Woerner, in his chapter on the subject of the probate powers as they existed at common law and under the English statutes, uses the following language:

The common law of England, as affected by the statutes above named, (and others relating to probate,) which were enacted before the settlement of the American Colonies, is at the basis of the American statutes concerning adminis tration, and the law in the American States in so far as it has not been sup planted by their own statutes. (Woerner, American Law of Administration, vol. 1, p. 316.)

He further states that the origin of our probate system, referable to the English spiritual courts, is still recognizable in the decisions of some states as to their mode of procedure, although the rules of the civil and common law which govern the ecclesiastical courts are necessarily greatly modified in the adaptation to widely different circumstances and to the spirit of the American people. In New Hampshire courts of probate "have a very extensive jurisdiction not conferred by statute, but by general reference to the law of the land, that is to that branch of the common law known and acted upon for ages, probate or ecclesiastical law." Morgan v. Dodge, 44 N. H. 255, 258. In California the superior court is by the constitution invested with jurisdiction over probate matters as a part of its general jurisdiction the same as its common-law and equity powers, and is not, therefore, a statutory tribunal, although controlled in the mode of its action by the code. Burris v. Kennedy, 108 Cal. 331, and Heydenfeldt v. Superior Court, 117 Cal. 348.

While American courts of probate may properly be said to be purely creatures of statute at the present time, yet, as Judge Woerner has pointed out, the law administered by them is unquestionably based upon

66

the common law as administered in the Acts of Parliament prior to the date of the transfer of sovereignty. We think there can be no question about the proposition that Congress meant to extend the law of the administration of estates to China under the term common law" as fully as it meant to extend the law of crimes, which must have been its first consideration in enacting the statutes for the purpose of carrying into force and effect the treaties of extraterritoriality with China.

We hold, therefore, that prior to the inauguration of this court, the consular courts of the United States in China had jurisdiction in the matter of the estates of Americans decedent in China, in all cases, and that now this court has jurisdiction in such matters when the value of the estate involved is above five hundred dollars United States currency, the consular courts retaining their jurisdiction over those estates which are valued at less than this amount.

The will is admitted to probate and letters testamentary will issue forthwith.

BOOK REVIEWS

International Law. Treatise by L. Oppenheim. Longmans, Green & Co. London and New York. Two volumes: Vol. I, pp. xxxvi, 610; Vol. II, pp. xxxiv, 595.

66

The student wishing to acquaint himself with the principles of international law as they exist to-day will find his desires met most amply and satisfactorily in these volumes, which, as claimed by the author, are for students written by a teacher." Himself schooled, as are few other men, in the theories of law, he has little indulged in them save to illustrate his subject. The author's leanings, however, against the positive theory as claimed to be supported by natural sanctions, he does not disguise. To many, his tendencies in this respect will seem to lead to conclusions weakening the compelling forces of the law of nations, regarding, as the author does, its rules, not as resting in the nature of things or in natural right, but as in usages developing into customs which finally for their efficiency rest upon express or implied compact between equals. Such compacts, he finds, for the most part, evidenced by treaties, international practices, and writings of eminent men.

Notwithstanding the author regards the subject from the view-point indicated and makes this manifest, his work is not in any large sense to be considered controversion or polemical. He would rest the foundation of his principles upon a thoroughly jurisprudential basis, which to him gives a veritable positive sanction. The student, however, is informed of the views of those authors who approach the subject differently, and their opinions are fairly analyzed. Summing up somewhat the remarks already made, the reader will readily conclude that his method of reasoning illustrates the inductive rather than the deductive system.

Those who peruse Professor Oppenheim's work will recognize with pleasure its freedom from the deficiencies of temper, when treating of the action of nations other than the English, which disfigure the otherwise admirable volume of Hall.

Professor Oppenheim's first volume is given over to a discussion of the law between nations in times of peace. Commencing with an examination into the foundation of the law of nations, its development and

science, he discovers who are international persons, investigates the position of states in the family of nations and their responsibility in general for international delinquencies because of the acts of their official members and of private persons. Before the recent Venezuelan commissions sitting at Caracas, no question was more discussed than that of the responsibility of states for the acts of unsuccessful revolutionists, and, speaking broadly, all the Americans connected with those commissions held that no such responsibility existed, save in the case of proven negligence. It is possible to cite European authors taking the contrary position, but we are pleased to note the following as the language of Oppenheim upon this point:

The majority of writers maintain correctly the fact that the responsibility of states does not involve the duty to repair the losses which foreign subjects have sustained through acts of insurgents and rioters. Individuals who enter foreign territory must take the risk of the outbreak of insurrection or riots just as the risk of outbreak of other calamities. * The state itself never has by

* *

international law the duty to pay such damages.

Following the subjects above indicated, Professor Oppenheim discusses the objects of the law of nations treated geographically, including in this methods of physical acquisition or loss. Rules pertaining to the open sea receive due consideration. The position of individuals in international law is analyzed, as we believe, with greater correctness than by the majority of writers on international law. Oppenheim points out what is denied or ignored by many writers that it is entirely possible for a man to be without recognized citizenship in any country and has treated, with correctness as we believe, the subject of double citizenship. These topics also received special consideration before the Caracas commissions and the conclusions arrived at were in general accord with those offered by the writer.

Next, the author reviews the powers and position of the organs of the state in its international relations, including the executive, diplomatic envoys, consular representatives, and other agencies. Negotiations, congresses, conferences, and other transactions lead to the concluding head of treaties.

The second volume opens with a discussion of state differences and their settlement either by amicable means or by compulsion short of war. The institution of the Hague Tribunal under the convention of 1899 receives attention, but the specific cases decided by it are not referred to, important as were at least two of them in the history of

international law. We refer particularly to the Pious Fund Case, which authoritatively, as we believe, established the sanctity of international arbitral judgments as res judicata whenever and wherever they should be invoked; and the Venezuelan preferential question, the correctness of the decision in which case has been and will undoubtedly continue to be the subject of much discussion. The greater part of the volume, however, is devoted to the discussion of the rules of war and of the state of neutrality incidentally created. Differing with a large number of writers, Oppenheim does not apparently consider that a pacific blockade involves in itself an absolute anomaly. In this he has been influenced, it would seem, by the rules laid down by the Institute of International Law and, it may be, by the recent attitude of England, Germany, and finally Italy toward Venezuela. As perhaps is to be expected of a writer influenced, consciously or otherwise, by the English school of thought, Professor Oppenheim is critical of the rule of " due diligence " as laid down by the Alabama arbitrators, although recognizing the three rules of Washington as "the starting point of the movement for the general recognition of the fact that the duty of impartiality obliges neutrals to prevent their states from filling and fitting out, on order of belligerents, vessels intended for warlike purposes." It is interesting to note that, discussing the question of blockade, he differs with some writers, finding no special justification necessary, adding that "the fact is that the detrimental consequences of blockade for neutrals stand in the same category as the many other detrimental consequences of war for neutrals. Neither the one nor the other need be specially justified.” In discussing the subject of contraband, the author, perhaps wisely, does little more than indicate prevailing differences of opinion upon the subject without largely committing himself, although he maintains that states have a right, when going to war, to declare what shall be recognized as contraband. If nations in such position must have, as he says, "a free hand in increasing or restricting * the list of articles of absolute contraband," we are unable to give full force to his words when he adds that "the article concerned" must be "by its character primarily and ordinarily destined to be made use of for military or naval purposes."

*

The text of the work closes with a discussion of the visitation, capture, and trial of neutral vessels. Appendices of the most important English acts and international conventions relating to war, neutrality, and the settlement of disputes are added. JACKSON H. RALSTON.