jurisdiction since their civil jurisdiction was limited to cases where the amount involved does not exceed $500, while divorce cases involve a status whose pecuniary value cannot be estimated.

As a result of the decision of the United States Court, the Act of Congress of March 3, 1901, being the latest expression of Congress,68 is held in force as fixing the grounds for divorce. But the consular court regulations prescribe the penalty. These provide that "divorce releases both parties and they shall not remarry." These latter prevail, and consequently an absolute divorce will be granted, even though the District of Columbia Code only allows a legal separation for certain causes."9

LEGISLATION FOR THE EXTRATERRITORIAL JURISDICTION

Since the Act of 1906 creating the United States Court for China, no Act of Congress has been passed specifically intended for the extraterritorial jurisdiction, with the exception of the China Trade Act. Prior to the creation of that court the American Minister had power to decree rules and regulations for consular courts. This power, in the view of both the State Department and the United States Court, was limited to regulations governing procedure and did not include the power to enact substantive law. 70 Section 5 of the above Act provided that the procedure of the court was to be in accordance with the existing procedure provided for the consular courts in China, with authority in the Judge to modify and supplement the said rules. This authority has since been exercised by Judge Lobingier, who promulgated rules for the court." In 1917 the State Department, in an instruction to the United States Minister to China, announced "that the Department is clearly of the opinion that Section 5 should be construed as effecting a transfer of the authority to modify and supplement existing rules of procedure from the Minister to the United States Court for China."

With respect to legislation in matters of substantive law, the court is authorized to apply any Act of Congress, whether a general law or a special act intended for a particular territory, which is "suitable" and "necessary to execute the treaties. "'72 As to whether a given law fulfills those conditions is for the judge in each case to decide. Thus, the Federal Bankruptcy Act of July 1, 1898, has been held 73 in force in China, even though other courts were given exclusive jurisdiction elsewhere. Likewise the voluntary assignment Act of Congress of March 3, 1901.74 These cases, decided by Judge

68 U. S. Stats. at Large, Sess. II, Ch. 854.

69 Roberts v. Roberts, Ex. Cases, 918.

70 Moore, Int. Law Digest, II, 617; U. S. v. Engelbracht, Ex. Cases, 169; McDermid v. McDermid, Ex. Cases, 369; this JOURNAL, Vol. 2, p. 225.

71 Extraterritorial Remedial Code, Ex. Cases, 180.

72 Ex. Cases, 638.

73 In re Bankruptcy Petition, Ex. Cases, 897.

74 In re Assignment of Fobes, Ex. Cases, 950.

Lobingier, were contrary to decisions by his predecessors, Judges Wilfley 75 and Thayer 76, but in view of the decisions of the Circuit Court of Appeals in the Biddle case, there can be no doubt as to the applicability of the Act in question.

There is, therefore, now available to American citizens in China a more definite and more extensive body of law than was the case in Japan at the time of the abolition of extraterritoriality in that country. The commercial and financial interests of Americans in China are also greater. The system of extraterritoriality in China, which had its origin at about the same time as that in Japan, has now had a quarter of a century of development since the latter was abolished. The system of jurisprudence as developed under the Act of 1906 and the decisions of the United States Court in the past 20 years of its existence, is more complete than that of any body of extraterritorial law. An American citizen in China has all the rights and remedies that a citizen of the District of Columbia, for example, would have. For all legal purposes his position is the same as though he were in the Federal District.

THE ABOLITION OF EXTRATERRITORIALITY

The extraterritorial jurisdiction of the United States over its nationals in Japan was abolished by treaty in November, 1894. This came as the result of long negotiations between Japan and the United States and other Western Powers for the revision of the treaties. As early as December 4, 1883, President Arthur had said, in his annual message to Congress: "This Government is disposed to consider the request of Japan to determine its own tariff duties, to provide such proper judicial tribunals as may commend themselves to the Western Powers for the trial of causes to which foreigners are parties, and to assimilate the terms and duration of its treaties to those of other civilized states." 77 At first Japan endeavored to treat with the Powers jointly in 1880 and to "accomplish the recovery of both judicial and tariff autonomy by degrees, according to a graduated scale." 78 This policy was later abandoned for one of treating separately with the Powers, and in 1888 the first treaty abolishing extraterritoriality was signed with Mexico. In return for the relinquishment of extraterritorial rights, Japan agreed to open the Empire to foreign trade and residence.

China's efforts to secure the abolition of extraterritoriality resulted in a treaty with Great Britain in 1902 (the Mackay Treaty), Article 12 of which contained a provision similar to that of the American treaty of 1903, already quoted at the beginning of this article, and repeated in the Sino Japanese Treaty of the same year.

At the Paris Peace Conference, the Chinese delegation sought to secure TM Ex parte C. A. Biddle (1907).

7 In re S. H. Comstock, Insolvent.

77 Richardson, Messages of the Presidents, Vol. 8, p. 175.

78 Dennett, Americans in Eastern Asia, p. 523.

the surrender by the Powers of their extraterritorial privileges upon the fulfillment by China of the following conditions:79

(1) The proclamation of a Criminal, a Civil and a Commercial Code, a Code of Civil Procedure, and a Code of Criminal Procedure.

(2) The establishment of new courts in all the districts which once formed the chief districts of the old prefectural divisions, that is to say, in fact in all the localities where foreigners reside.

When the Government of China was approached by the representative of the newly created Powers after the World War for the negotiation of treaties, it gave them to understand that China would not grant any extraterritorial jurisdiction.

China, like Japan, followed the policy of dealing with the Powers separately. In her treaty with Sweden in 1908, it was provided that "as soon as all other Treaty Powers have agreed to relinquish their extraterritorial rights, Sweden will also be prepared to do so." 80 Bolivia agreed, in an exchange of notes, that the "most favored nation" clause in Article II of the treaty of 1919 does not include extraterritorial rights. Persia, in Article IV of her treaty of 1920 agreed that "in all civil and criminal cases to which Persian subjects are parties, they shall be subject to Chinese law and jurisdiction." Germany and Austria-Hungary lost their extraterritorial rights when China declared war on the Central Powers in 1917. This was sanctioned in the case of Germany by the Sino-German agreement of May 30, 1921.

In September, 1920, the Chinese Government by a presidential mandate, suspended the Russian extraterritoriality privileges, and on May 31, 1924, the Soviet Government expressly agreed to relinquish the rights of extraterritoriality.

In the meantime a Law Codification Commission, composed of eminent Chinese jurists, with the assistance of foreign counsel, has been engaged in the work of revision of the draft codes prepared during the Manchu régime, and in compiling new codes. The final drafting has been completed of the Penal Code, the Penal Procedure Code, the Civil Procedure Code, and it is now engaged in drafting commercial laws. Prison reform has also engaged the attention of the government since 1906. A system of modern courts, presided over by officials having purely judicial functions, was established in 1910. In 1918 there was promulgated a law embodying "Rules for the application of Foreign Laws," which dealt with matters of private international law and under which foreign laws may be applied in certain cases.

THE WASHINGTON CONFERENCE RESOLUTION

At the first meeting of the Committee on Pacific and Far Eastern Questions of the Washington Conference on November 16, 1921, Mr. Sze of the Chinese delegation enumerated certain principles he desired adopted, the fifth of

79 Bau, M. J., The Foreign Relations of China, p. 304.

80 China Year Book of 1925, p. 606.

MILBANK, TWEED, HOPE & WEBB

which was that "immediately or as soon as circumstances will permit, existing limitations upon China's political, jurisdictional and administrative freedom of action be removed." The subject was discussed at the sixth meeting on November 25th, at which a subcommittee was appointed to draft resolutions. This subcommittee met on November 28th and adopted three resolutions, which were subsequently adopted as Resolution No. 4 by the Conference at the fourth plenary session on December 19, 1921.

This resolution provided for the appointment of a commission composed of one representative from each of the Powers, and a representative from China, which should meet to inquire into the present practice of extraterritorial jurisdiction in China, and into the laws and judicial system and the methods of judicial administration of China, with a view to reporting their findings of fact and their recommendations as to such means as they may find suitable to improve the existing conditions of the administration of justice in China, and to assist and further the efforts of the Chinese Government to effect such legislation and judicial reforms as would warrant the several Powers in relinquishing, either progressively or otherwise, their respective rights of extraterritoriality.

The

In pursuance of this resolution, the Extraterritorial Commission convened at Peking on January 14, 1926. It is presided over by Mr. Strawn, the American Commissioner, as Chairman, the Honorary President of the Commission being the Minister of Justice of China, Mr. Ma Chung Wu. Chinese Commissioner, Dr. Wang Chung Hui, was one of the Chinese delegates at the Washington Conference, and has been the President of the Law Codification Commission of China, charged with compiling the modern codes of China, modeled on the western systems of jurisprudence.

This commission is required to submit its report within one year from the date of its first session or by January 14, 1927. Each of the Powers shall be free to accept or reject all or any portions of its recommendations. But in no case shall any of the Powers make the acceptance of all or any portion of such recommendations depend either directly or indirectly upon the granting by China of any special concession, favor, benefit, or immunity, whether political or economic.

This would seem to prevent the requiring of the opening of the whole of China to trade as a quid pro quo for the relinquishment of present treaty rights. In the end it would appear that China will be required to negotiate individually and not collectively with the several Powers.

SPHERES OF INFLUENCE: AN ASPECT OF SEMI

SUZERAINTY

BY GEDDES W. RUTHERFORD

Associate Professor of Government, Iowa State College

Austen Chamberlain, British Secretary of Foreign Affairs, declared in the House of Commons, December 15, 1924, that Great Britain would "regard as an unfriendly act any attempt at interference in the affairs of Egypt by any other Power, and would consider any aggression against the territory of Egypt as an act to be repelled with all the means at their command." Similar statements have frequently been made by the responsible ministers of the Powers when discussing "spheres of influence." It is probably not possible to give a precise meaning to the phrase "sphere of influence" because, as Hall says, "perhaps in its indefiniteness consists its international value." Nevertheless, the phrase has been applied specifically to characterize the control of portions of Asia and Africa, certain islands in the Caribbean, and of regions in Central America. In these regions are to be found in operation arrangements, some secret and some public, stipulated either by treaty, diplomatic declaration, "gentlemen's agreements," or effected, ofttimes, by military or economic penetration, varying greatly in degree and intensity, which enable Powers and their citizens to enjoy advantages in these regions without exercising, necessarily, sovereign control.

This discussion proposes to consider: I. The characteristics or privileges of an influencing Power in an influenced region; II. The comparison between spheres of influence and other types of semi-suzerainty.

The characteristics or privileges which a Power exercises over a sphere of influence may be considered as positive and negative. On the one hand, in that an influencing Power may employ a variety of devices which attempt to prevent other Powers from getting a foothold in the influenced region, the term, in the words of Ilbert, "has merely a negative meaning." On the other hand, the establishment of a sphere of influence over a region may be tantamount to the establishment of superior control, such control usually "being manifested through native agencies and by way of influence rather than by direct administration." 3

Turning first to the negative aspects which spheres of influence may possess, we may note that they may take one or more of the following forms: 1 Hall, W. E., Foreign Powers and Jurisdiction of the British Crown, p. 28. The American Secretary of State, in commenting on the Franco-Moroccan treaty (1912), stated "that it is not sufficiently detailed and concrete in its provisions to permit of submission to this country's treaty-making power." Foreign Relations of the United States, 1914, p. 906. 2 Ilbert, C., Government of India, 3d ed., p. 369, n. 1. Naval War College, International Law Situations, 1902, p. 35.