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Chapter 2

The International Regime

In addition to the developing national deportation policy, an evolving international legal regime structured immigrant removals. One illustrative case of this structuring power took place in 1884, when German immigration authorities sought to deport a U.S. citizen named Constant A. Golly. Golly was born in Germany, but in 1875, at age seventeen, he immigrated to the United States. Five years later, he naturalized as an American citizen and gave up his German citizenship. In 1884, Golly visited Germany. According to Golly, he returned to Germany in 1884 to look after his ailing, widowed mother, and, while he did, he believed his U.S. citizenship exempted him from the military service required of German men. The Germans, however, understood it differently.¹ Not long after his arrival, Golly received a notice from local authorities stating that he owed German military service. If he did not serve, the government would deport him. Golly chose not to enlist, but he wanted to remain with his mother. He contacted an American consular officer, hoping that the U.S. legation could help prevent his removal.² And, initially, U.S. officials tried. The steps they used at the start of Golly’s case represented a large part of the international legal regime and it amounted to an international appeal, a diplomatic process that could stop a deportation.

At the end of the nineteenth century, the international legal regime was largely built out of the jurisdiction nations retained over their emigrants while they traveled abroad. There were two key variants of this jurisdiction. The international appeal represented one. The other was more imperialist and it imposed restrictions on the ability of many nations and empires located in Asia and the Middle East to carry out deportations. Both jurisdictions were forms of extraterritoriality. U.S. officials would use both to protect American citizens from removal. A nation or empire’s place within the interstate community affected the reach and degree of both forms of extraterritoriality. When the U.S. federal government got into the business of deporting people from the United States, because of its place within the comity (or community) of nations, they found their policy structured by the international appeal.

By the early years of the twentieth century, national-level policy makers deemed the destination of an immigrant removal more important than it had ever been, and officials on the receiving end increasingly had to approve a deportation. Immigrant removals, once largely unilateral, were now increasingly bilateral. This convergence in national policies led immigration officials and diplomats to negotiate agreements and protocols. In these, along with many countries, U.S. officials made important additions to the international legal regime. As they did, officials changed the logic of the international regime, making it function less as a resource for emigrants abroad and more for nation-states to police sovereign soil. In the process, the international legal regime became even more elemental to carrying out deportations.

The International Appeals Process and the Ties of Male Citizens

Constant Golly’s deportation was one of at least 447 deportations of U.S. citizens ordered in Germany and Austria-Hungary between 1868 and 1903. All of these cases involved young men, most of whom were in Europe to visit family or attend school. Some were there for business.³ Men like Golly sometimes requested that U.S. diplomats intervene to halt their removal so that they could continue living abroad as U.S. citizens. Unlike a domestic appeals process, like the ones in operation in the United States examined in Chapter 1, the international appeal was a soft process that involved reciprocal diplomatic power, legal rhetoric, appeals to treaties, and sometimes even threats. Chinese officials tried to use the international appeal to protect some Chinese immigrants in the United States from deportation because all nations with sovereignty could use the international appeal. But, as it turned out, they could not all use it equally.

Using the international appeal in Germany and Austria-Hungary during the late nineteenth century turned out mostly to involve U.S. diplomats’ protection of the citizenship of Americans abroad. They did so, for example, in the face of German citizenship laws that were seemingly making U.S. citizens into Germans. The German and Austro-Hungarian governments, of course, understood it quite differently.⁴ At the heart of such interventions was one question: were they Americans or not? This question was intimately tied to another: did these men, all of whom claimed U.S. citizenship, owe military service to either Austria-Hungary or Germany?⁵ Answering these questions was complicated because it was sometimes unclear where one citizenship status ended and another began.⁶ As German or Austro-Hungarian and U.S. officials puzzled out the cases, their efforts contributed to what sociologist David Cook Martin has referred to as “a scramble for citizens.” In this age of mass migration, government officials worked to preserve ties with their emigrants abroad, sometimes doing so in competition or conflict with officials from countries of immigration.⁷ As the cases involving deportations from Germany and Austria-Hungary help illustrate, use of the international appeal protected immigrants from deportation and fostered positive ties between emigrants and their country of origin. It did so by serving as a resource that some emigrants accessed while outside their country of citizenship.⁸

The ability of U.S. officials to intervene in German or Austro-Hungarian cases like Golly’s was rooted in international law of the nineteenth century that mandated channels for emigrant-sending states to look out for their emigrants. “All civilized states,” Edwin M. Borchard, a professor of law at Yale University, stated in 1915, “must yield some share of their absolute liberty of action and that their rights must be reconciled with the reciprocal rights of other states.” He continued, “Among these mutual concessions, the one of present interest is the fact that the territorial sovereignty or jurisdiction of a state has to be reconciled with the right of other states to protect their nationals abroad, an outgrowth of principle and practice, rather than the subject of formal written admission.”⁹ This meant that if the Germans wanted to remove an immigrant, then the emigrant-sending state could have something to say in the process. This amounted to an international appeal.

The 447 military cases in which U.S. officials used the international appeal originated in the second half of the nineteenth century, when diplomats from Germany, Austria-Hungary, and the United States faced the fact that some men were using “flexible citizenship” to avoid military service.¹⁰ One U.S. consular officer, Bartlett Tripp, wrote in 1894: “It is an undeniable fact that hundreds of young Austro-Hungarian citizens approaching the age of military service emigrate to America, and, remaining there just long enough to acquire citizenship, return again to their native country to permanently reside, resuming their former citizenship and allegiance to the Government in everything but its military laws.”¹¹ He continued, “Many of these returned pseudo-Americans are loud in their defiance of the military power, and openly and shamelessly boast of their smartness in being able to enjoy all of the privileges of a government without being obliged to share its burdens or responsibilities.” Their actions, Tripp alleged, did great harm. “The example of these ‘Americans’ before the young men of the country, to say nothing of their teachings and boastful assertions of immunity,” Tripp noted, “is pernicious, and against public order and ready obedience on the part of the citizens to the necessarily harsh enforcement of the military laws of this Government.”¹²

U.S. officials publicly supported some of the deportations that German and Austro-Hungarian authorities pursued as a means of dealing with the flexible use of citizenship. A country had the right “to bar its doors against obnoxious citizens of other nations for reasons which to itself may seem sufficient,” Tripp acknowledged, “without cause of complaint on the part of the nation whose citizen is thus debarred.”¹³ Indeed, the U.S. government already “assumed the right in the case of China.”¹⁴ In the case of Constant Golly, which opened this chapter, the consular agents handling the case soon dropped his defense. They found that Golly was using his U.S. citizenship to avoid military service, while intending to live permanently in Germany. U.S. authorities did not object when the Germans deported him.¹⁵

U.S. officials, however, felt that in general the Germans and Austro-Hungarians were too aggressive with their expulsions, and they set out to stop some through international appeal. The first step in protecting some of the U.S. citizens, especially naturalized citizens, from deportation in the military cases was for U.S. officials to convince the German or Austro-Hungarian officials that they were innocent of deliberate evasion of military service, with age of migration a key factor. If a person immigrated to the United States before he was drafted, and especially if he had immigrated at a young age with his family, the U.S. consulate defended the naturalized American. An 1889 statement from one U.S. consular officer in defense of Hugo Klamer, a naturalized U.S. citizen born in Austria, captures this argument clearly. This official wrote, “[T]he assertion is hardly maintainable that a boy who emigrates at the age of fourteen years, who resides twelve years uninterruptedly in the United States and acquires American citizenship during his residence there, and then returns to his old home for the purpose of a visit, and is compelled by circumstances to prolong his visit, but declares under oath that he intends to return to the United States at an early day, has emigrated for the purpose of evading military service.”¹⁶ U.S. officials, therefore, argued to European officials that so long as a man emigrated before he was sent a draft notice, they considered the migration and naturalization valid.

U.S. officials managed in some cases to convince the sending country to cancel the immigrant removal using the argument about youth. Three examples make this point. Charles George left Germany for the United States when he was fifteen; Gerhard Wientjes, born in Prussia, emigrated at thirteen with his parents; and Rudolph Lieffert, also born in Prussia, emigrated at the age of two.¹⁷ In all of these cases, after the Americans sent a note defending against their expulsion on the grounds of age, the German or Austro-Hungarian officials agreed to drop the cases.

German officials took a different tack in some of the other military cases involving men who emigrated well before draft age, arguing that they had the right to expel men for evasion of military service on the grounds that they were German citizens by treaty and German naturalization law. In making this argument, the Germans turned to two treaties, one from 1828 and another from 1868.¹⁸ Most important was the treaty of 1868, which set the protocols under which an immigrant could renounce his or her naturalization. According to the German interpretation of the 1868 treaty, if a German-born, naturalized U.S. citizen returned to Germany, he or she would lose American citizenship if he or she showed no intent to return to the United States. In the case of men of military age, the Germans held that the passive action of staying in one of the German states for more than two years indicated intent not to return to the United States.¹⁹ These newly made Germans then owed military service. If they did not serve, then German officials would expel them.

The majority of the military cases involved naturalized Americans, but a minority dealt with U.S.-born men who had German-born fathers. Through their use of the treaties, the Germans tried to hold U.S.-born men accountable for military service, too. A number of U.S.-born sons traveled with their families to their fathers’ country of birth in the last half of the nineteenth century. If such a family emigrated from the United States to Germany, some of the U.S.-born sons faced the choice to serve in the military or be removed. To make this argument, German officials noted that under German law, a father’s citizenship determined the nationality of his minor child. As long as children remained under parental control, they “share[d] the nationality of the father.”²⁰ Thus, when a German father who had lived in the United States without ever becoming a U.S. citizen returned to Germany with his minor son, German authorities understood the son to be German, not American. The same principle even applied to German fathers who naturalized as American citizens. The German government held that after two years of residence in Germany the father had renounced his U.S. citizenship and renaturalized as a German. By extension, the son, too, was German and therefore obligated to serve in the military.²¹

Where German and Austro-Hungarian authorities turned to their interpretations of treaties to require military service of U.S. citizens, U.S. authorities made three key arguments to protect naturalized Americans and people born with U.S. citizenship from expulsion.²² First, in the case of naturalized Americans, they argued that the mere fact of residence for two years did not necessarily demonstrate “intent” never to return to the United States. Some naturalized Americans stayed in Germany longer than two years, but intended to return to the United States. The State Department argued that the two-year rule misinterpreted the 1868 treaty.²³ Second, the American authorities disagreed with Germany’s interpretation of the treaties, holding that the treaty of 1868 “cannot of itself convert an American citizen into a German, nor a German into an American, against his will.”²⁴ As one American consular official argued, “[e]ven the renunciation of one citizenship does not of itself create another … [the object of the treaty was not to convert citizens but] was rather to recognize the obligation of a new citizenship which had been lawfully acquired in the other country.”²⁵ In these two arguments, then, U.S. officials contested the way that German or Austrian authorities were unmaking American citizenship through a passive, ascriptive process.

The third argument U.S. officials drew on involved gender and youth; to U.S. consular officers, Germany was inconsistently and unjustly applying the two-year rule. The U.S. Department of State believed that Germany tended to “reconvert” only men of military age. Not women, not older men. U.S. consular officers pointed out that many other Americans maintained their U.S. citizenship even after two years of residence in Germany. Therefore, it appeared as if the issue mattered only if the person was male and of age to serve in the military.

By the 1890s, the German authorities had come around to the U.S. position on citizenship in the case of U.S.-born men. In a letter over one case, Count Paul von Hatzfeldt, the undersecretary of state in charge of Germany’s Imperial Foreign Office, acknowledged concessions in response to repeated American requests: “His Majesty’s Government has,” Hatzfeldt wrote, “after repeated consideration, and after overcoming many scruples which suggested themselves, decided to still recognize the American nationality of the sons in question of former subjects of the Empire, even, also, when their fathers have lost the citizenship acquired in the United States.” Hatzfeldt noted that agreeing to the American position went against the citizenship laws of the rest of Germany. It agreed to recognize the American citizenship of U.S.-born sons “in order … to pave the way for an amicable solution of the existing difficulties.”²⁶

As it turned out, this concession did not resolve all of the military cases. Germany articulated additional grounds that demanded military service of U.S.-born men, turning now to domestic (or national) law. Under German law, one official explained, “[f]ormer subjects of the Empire … are, in this case, not dispensed from military duty in Germany.”²⁷ German officials maintained that even if U.S.-born sons of German citizens were U.S. citizens, while living in Germany, they enjoyed the protections and benefits provided by the state. Such a person was obligated to return the favor by naturalizing as a German and serving in the military. If he were unwilling to do so, German authorities could execute an order of expulsion. As a result, a U.S. consular officer explained, U.S. citizens of draft age were being “expelled from Germany on abrupt notice, at the pleasure of the authorities, under the alternative of becoming German subjects.”²⁸

In response, U.S. consular officials argued that treaties of commerce overrode the demands of military service dictated through national law. According to the 1828 treaty between Prussia and the United States, American officials pointed out, U.S. citizens abroad enjoyed the liberty “to sojourn and reside in all parts whatsoever of said territories, in order to attend to their affairs; and they shall enjoy to that effect the same security and protection as natives of the country wherein they reside.”²⁹ Consular officials argued that this right was being undermined by the German authorities’ treatment of young, naturalized or native-born American men. According to one U.S. consular officer, “the contention of the German Government, that such sons [U.S.-born citizens] may be expelled from Germany on abrupt notice, at the pleasure of the authorities, under the alternative of becoming German subjects is tantamount to claiming the right to expel any citizen of the United States.” The German claim that “‘international principles permit the refusal to such persons of sojourn in Germany,’ in the interest of public order,… does not apply to any and every native born American citizen of military age who, for purposes of business, study, or pleasure, may take up a peace-able abode in Germany.”³⁰ One U.S. consular officer further noted that the United States “learns with regret that the Imperial Government regards itself as justified by international principles in refusing the sojourn in Germany of these native born American citizens, although they are, as such, obedient to the laws and ordinances there prevailing.… This refusal of the right of peaceful sojourn, therefore, seems to the American Government to be in contravention of the spirit and even the letter of other treaties.”³¹ U.S. diplomats, therefore, protested the ways a foreign state’s domestic law was overriding an international treaty.

In their appeals, the U.S. consular officers used diplomatic interventions similar to ones Chinese diplomats made on behalf of Chinese immigrants in the United States. Chinese officials had appealed the ways that U.S. immigration officials were using national law to undermine an international treaty. After a raid in Denver in 1897, for example, Wu Ting-Fang of the Chinese legation in Washington wrote to the U.S State Department, stating that raid was “contrary both to the spirit and letter of the Treaties solemnly entered into between the two countries.” Hoping to persuade U.S. immigration officials to scale back the aggressive enforcement of Chinese exclusion laws, Wu added, “My fear is that, if such proceedings are allowed to be passed over, this Mr. Chamberlain [the immigration official who led the raid] or other Treasury officials will repeat them in other communities to the further injury and alarm of my countrymen.”³²

Members of the Chinese legation also used the international appeal to contest the ways U.S. officials violated the rights and liberties of Chinese immigrants. For instance, after an 1893 raid in San Francisco, Chinese official Yang Yu wrote to the U.S. secretary of state protesting that the Chinese residents were “treated as though they are guilty of the highest offenses known to the law, and held in custody while their property and effects are wasted or destroyed.”³³ In a different appeal, Chinese consular agents stepped in to protect two men named Ping Yik and Poy Kwan. In 1899, U.S. immigration authorities had arrested and ordered them deported. Both were Section 6 immigrants (those exempt from Chinese exclusion), having arrived in the United States two years earlier. They had been issued visas and admitted to the United States as merchants. The two appealed their deportations using the national-level appeal, and they also contacted Chinese consular officers to launch an international appeal. Ping Yik and Poy Kwan’s national appeal was successful and the court released them.³⁴ Chinese diplomat Wu Ting-Fang followed up their release with a letter to the U.S. secretary of state, with the intent of shielding Ping Yik and Poy Kwan in the future from aggressive immigration enforcement that treated them as laborers. He wrote,

It seems to me but just that these two men, after a fair trial which conclusively proves that they are entitled by law and treaty to remain in this country, should not be further molested in any way, and put to great inconvenience and expense in defense of their indisputable rights. I am informed that their arrest was part of a concerted scheme on the part of certain lawless persons to harass the Chinese in and about Buffalo. In view of these circumstances, I respectfully request that you will kindly communicate with the Honorable the Attorney General on the subject to the end that instructions shall be sent to the United States District Attorney at Buffalo, New York, to discontinue further proceedings against the said Ping Yik and Poy Kwan, and permit them to carry on their business in peace.³⁵

There was an important strategy in an international appeal that U.S. officials used when trying to protect an American from deportation that Chinese diplomats could not: U.S. officials threatened to reciprocate. In defending Hugo Klamer from expulsion from Austria-Hungary, for example, the Americans likened him to Austrians in the United States who were, the U.S. legation’s officials stated, allowed to sojourn, in some cases even to the detriment of U.S. interests. If the Austrian government continued to expel sojourning Americans, U.S. officials threatened, they would reciprocate in a manner that could severely hurt Austrian economic interests. One letter from the U.S. consulate to the Austrians stated,

In the United States and especially in the port of New York reside hundreds of Austrian subjects who have, for a long series of years, been engaged in the importation of Austrian merchandise and have never harbored the intention to acquire American citizenship. These Austrians have in course of time increased the export of Austrian manufactures to the United States to the sum of 25,000,000 florins per annum. They are very successful competitors of the American importer as well as manufacturer, and monopolize almost completely the trade in Vienna specialties. Most of these gentlemen return to their old home to enjoy their fortune after they have amassed it in the United States. These foreigners are of no particular benefit to the United States; on the contrary, they impair the business interests of the American importer and manufacturer.

In view of these facts the question arises in what manner the action of the American authorities would be judged here in Austria, in case they should suddenly expel these foreign importers from the country and thus injure the export trade of Austria and especially that of the city of Vienna. And yet such action would only be in the nature of a retaliatory measure if the proposed expulsion of Hugo Klamer is carried out.³⁶

U.S. efforts to protect Klamer also included threats to demand similar military service of Austro-Hungarians in the United States. While U.S. officials agreed that nation-states had a right to enlist residents in the military, the United States, as a liberal-minded state, had not even required military service of foreigners during times of national crisis. Consular officer Edmund Jussen noted, “My Government has always made the most liberal concessions to foreigners.” Even in the Civil War, “when a general conscription was ordered, the United States did not disturb the foreigners, although many of them, Austrians included, were transacting lucrative business … while the American stood in the field under arms and protected the persons remaining at home.” Jussen then ominously added, “How long these liberal and extremely humane views will prevail if expulsion of American citizens like the one in question is decreed here can not be predicted.”³⁷

The agreements, concessions, and conflicts over different jurisdictions and discrepancies in laws and policies found in the military service cases of Germany and Austria-Hungary all illuminate the soft process of the international appeal. On the face of it, the international appeal established a kind of parity among nations within the interstate system, because all nations or empires with sovereignty could access it. Yet, as a quick contrast between Chinese officials’ efforts in the United States and U.S. officials’ actions in Europe makes clear, not all appeals were equal. A key determinant of strength was a far more extensive and imperialist variant of extraterritoriality, wherein immigrants fell under the laws of the country of their emigration rather than under the law of the land in which they traveled. This variant of extraterritoriality also represented another part of the international legal regime and it prevented some nations from carrying out deportations in the first place.

Extraterritoriality and Limits to the Power to Deport

China did not deport U.S. citizens through much of the nineteenth century and well into the twentieth, because the international legal regime that structured immigrant removals did more than mandate that emigrantsending nations retain some jurisdiction over their emigrants abroad through the international appeal. It also required that national removal policies, when applied to Europeans and citizens of colonial-settler nations like the United States, be built on Western law. Countries and empires in Asia and the Middle East, like China, found themselves especially impacted by this requirement. This form of extraterritoriality was not explicitly created to protect people from deportations, but it did, and it was enforced or realized through a particular, imperial extraterritorial agreement.

Throughout the late eighteenth and nineteenth centuries, extraterritorial agreements put jurisdiction over an immigrant in the hands of the country of emigration rather than the country of immigration. Between 1787 and 1886, the United States signed extraterritorial treaties with China, Morocco, Algiers, Tunis, Tripoli, Muscat, Borneo, Persia, Japan, Madagascar, Samoa, Tonga, and the Ottoman Empire.³⁸ Britain, Russia, France, and Germany also practiced extraterritoriality. Extraterritorial jurisdiction represented essentially an inversion of immigration law, where, writes legal scholar Leti Volpp, a sovereign “is governing its insiders, outside its territory. With … [immigration law], the sovereign is governing its outsiders, inside its territory.”³⁹ In countries under extraterritorial agreements, therefore, U.S. officials did not use the international appeals process to protect U.S. citizens from removal, because nations under this particular strain of extraterritoriality did not have the power to deport U.S. citizens.

The U.S. government’s operations in China between 1844 and 1943 exemplify how extraterritoriality worked to prevent deportations of U.S. citizens.⁴⁰ In China, U.S. law traveled with a U.S. emigrant. For the first fifty years of U.S. extraterritoriality in China, jurisdiction of Americans there fell to U.S. consular officials. In 1906, the U.S. government established a U.S. District Court for China to preside over U.S. emigrants. This left Americans in China subject to a unique blend of U.S. jurisdiction, which legal scholar Teemu Ruskola says “consisted of a mélange of colonial common law as it existed prior to American independence, general congressional acts, the municipal code of the District of Columbia, and the code of the Territory of Alaska.” As a California court explaining the extraterritoriality in China wrote, “American citizens residing for the purpose of trade in the ports of China are not regarded as subjects of that government, but that, for purposes of government and protection, they constitute a kind of colony, subject to the laws and authority of the United States.”⁴¹ U.S. officials prosecuted Americans in China, and, by extension, Chinese authorities did not have the power to deport U.S. citizens.⁴²

Two cases help illustrate the ways U.S. citizens in China were subject to U.S. rather than Chinese law. Consular officials arrested U.S. citizen Robert Sexton in Shanghai in 1909.⁴³ Sexton helped run a gambling operation at a club called the Alhambra. U.S. officials prosecuted him for vagrancy under the criminal code of Alaska.⁴⁴ The Consular Court for the District of Shanghai found Sexton guilty; he appealed to the U.S. Court for China.⁴⁵ That court ruled in his favor and discharged Sexton on grounds that the evidence was “not sufficient to establish the crime of vagrancy in the defendant.”⁴⁶ A year later, in 1910, U.S. consular officials arrested James Hadley at the Alhambra for operating a roulette table, in violation of Washington, D.C., criminal laws against vagrancy. Hadley was tried and found guilty in the U.S. Court for China. He was sentenced to prison for sixty days, which he served, in a U.S.-run carceral institution.⁴⁷ All U.S. citizens residing in China, like Sexton and Hadley, lived only under U.S. law, not Chinese law. If found guilty of a crime, they served their time in a U.S. jail.⁴⁸

Legal scholars writing in the late nineteenth and early twentieth centuries such as L. Oppenheim and Edwin M. Borchard capture the ways a discourse of civilization was used to assert this variant of extraterritoriality.⁴⁹ “Owing to the deficient civilization of these countries and fundamental differences in law and social habits, the countries of European civilization have stipulated for certain exceptions for their citizens from the operation of local law,” Borchard wrote in Diplomatic Protection of Citizens Abroad (1915).⁵⁰ He went on to say that if a state’s “laws are arbitrarily unreasonable and out of harmony with the standard of civilized states, or if the administration of the laws transgresses the prescriptions of civilized justice … the personal sovereignty of the home state reasserts itself and emerges in the form of diplomatic protection.”⁵¹ “In the Orient and in semi-civilized states,” Borchard wrote, extraterritoriality “often involves a complete surrender of local jurisdiction in favor of the foreign state, and in states conforming more closely to the highest type of civilized government, it consists in partial derogations from territorial jurisdiction in special classes of cases.”⁵² Historian Eileen Scully dates the rise of this discourse of civilization to the late eighteenth century, when “European governments [and European settler countries like the United States] successively imported [rights] into the capitulations [or extraterritorial agreements] concepts and doctrines taking hold in the Western world, such as diplomatic protection, due process, and non-Western inferiority.”⁵³ This discourse of civilization asserted that the cultural superiority of the West justified the rights of Westerners to Western-style law, even if they traveled to nations where other types of law existed.

The nations or empires that found themselves denied jurisdiction over Western foreigners found it was also used as grounds to exclude them from full membership in the interstate community. By the late nineteenth century the power to remove immigrants corresponded to a nation’s full membership in the “comity of nations.” Western nations operated within a community (or comity) because they practiced Western-style law. These laws were markers of “civilization.” Nations not operating with Western-style laws were, within the nomenclature of international law, outside the community because they were not “civilized.” As Oppenheim, one of the leading jurists in international law, put it, China or the Ottoman Empire were under extraterritoriality because of “their deficient civilisation.” They were, as a consequence, “only for some parts members of the Family of Nations.”⁵⁴ This use of the discourse of civilization represented a change in the interstate system. Where “Western Christian states had coexisted with other regional systems, such as Arab-Islamic hegemony,” writes historian Eileen Scully, “now [in the nineteenth century] the European standard of ‘civilization’ emerged as the yardstick of international relations.”⁵⁵

Some countries under extraterritoriality made progress in ending it in the late nineteenth century. Japan completely ended extraterritoriality by 1899. Ottoman officials were also trying to.⁵⁶ In 1856, Turkey had gained partial admittance into the concert of nations at the Treaty of Paris. On the partial membership of the Turks, Oppenheim wrote, “There is no doubt that Turkey, in spite of having been received into the Family of Nations, has nevertheless hitherto been in an anomalous position as a member of that family, owing to the fact that her civilisation has not yet reached the level of that of the Western States. It is for this reason that the so-called Capitulations are still in force and that other anomalies still prevail, but their disappearance is only a question of time.”⁵⁷ Not satisfied by partial membership, Ottoman authorities moved to establish the jurisdiction over all foreigners, which would mark an important step in gaining more complete membership in the community of nations.⁵⁸

In 1885, the trajectory of a pair of expulsions from the Ottoman Empire helps illustrate a connection between the two variants of extraterritoriality and the interstate community. That year, Ottoman officials moved to expel two U.S. citizens. The two men were brothers, Louis and Jacob Lubrowsky. They had been born in the Ottoman Empire, immigrated to the United States, where they naturalized as U.S. citizens. In 1885, the Lubrowsky brothers traveled to Palestine, then a part of the Ottoman Empire. As part of an anti-Semitic policy aimed at limiting the numbers of Jews in Palestine, the Ottoman government summarily ordered the Lubrowskys’ expulsion not long after their arrival.⁵⁹ Upon receiving their expulsion orders, the Lubrowskys contacted U.S. consular officers, asking them to use the international appeals process to stop their removal.⁶⁰

U.S. diplomats took up their case. U.S. officials questioned the legitimacy of the Lubrowsky expulsions, because to them the proceedings had not met the standards of rights required by the international regime. An American consular agent wrote that the Lubrowskys’ “expulsion without due process of law and conviction of crime or misdemeanor would be illegal and in violation of international comity, treaties, and capitulations.”⁶¹ Furthermore, he argued, these two U.S. citizens were being unjustly harassed by Ottoman authorities because of their faith.⁶² Using these arguments, U.S. diplomats hoped to convince Ottoman authorities to overturn the Lubrowskys’ orders of expulsion.

Ottoman officials initially tried to prevent U.S. intervention in the Lubrowskys’ cases, not by refusing to recognize the right of the international appeal, but rather by claiming the Lubrowskys were not U.S. citizens. In the nineteenth-century Ottoman Empire, people needed state permission to emigrate, which the Lubrowskys had not received. To Turkish officials, then, the brothers’ naturalization was null and void because they had emigrated in violation of Turkish law.⁶³ Thus, as neither man was a U.S. citizen, U.S. officials could not intervene on their behalf.⁶⁴ Yet even as they argued that the Lubrowskys were citizens of the Ottoman Empire, Ottoman authorities still wanted to expel them.

Conscious of the standing of the Ottoman Empire internationally, U.S. diplomats opposed the Ottomans’ attempt to ignore the brothers’ U.S. naturalization by questioning the “civilization” of their laws. Samuel S. Cox, the American minister to Turkey, wrote to the U.S. secretary of state, comparing Ottoman and U.S. laws: “The United States has emancipated itself from feudalism; it has announced on these very Levantine shores, with no ambiguous voice, its principle as to the indefeasible right of emigration and expatriation; it has fixed it in treaties with other civilized and progressive nations.” Cox wrote that “civilized” states allowed persons to voluntarily emigrate and naturalize elsewhere. “The doctrine,” he wrote, “is that no man can be bound in any service to a Government whose citizen or subject he has ceased to be by voluntary naturalization elsewhere. The old feudal doctrine was that no subject can go from the country where he was born or where he is without the consent of his lord and master, the Government.”⁶⁵ In their arguments, U.S. officials attempted to force the Ottomans to recognize the Lubrowskys’ emigration and subsequent U.S. naturalization. If they did not, Ottoman officials could perhaps risk some of their progress at gaining more complete membership in the comity of nations by being labeled “uncivilized.”

At the end of 1885, the Turkish government suspended the Lubrowskys’ expulsion order.⁶⁶ The documents do not explicitly explain the reasons, but the international appeal and efforts of the Ottoman authorities to establish a fuller membership in the community of nations played significant roles. To participate more equally in the comity of sovereign nations, the Ottoman sultanate had to recognize foreign states’ right to diplomatically “protect” their foreign nationals through the diplomatic appeals process. This explains, in part, why U.S. officials were using it to protect the Lubrowskys from the growing anti-Semitism in the Ottoman Empire. Thus, the global legal regime had (at least) two levels: one of bilateral relations among “civilized” states and one that relegated China and the Ottoman Empire to a lower status. The maintenance of jurisdiction of emigrants abroad was central to both.

Changing the Logic of the International Legal Regime

By the time U.S. officials built the policy to deport people from the United States, many other nations and empires around the world either revised their immigrant removal policies or passed brand-new ones, too. In the wave of construction, people sometimes used the word “expulsion” interchangeably with “deportation.” Both words meant that someone was being removed from some place, but there were important differences that fundamentally changed the logic of the international legal regime. The newer policies, labeled “deportation” in this book, made the question of where to send a person central. Answering the question about the destination of a deportation required officials from a sending nation to confront another question: would the country on the receiving end agree to the deportation? Without answers to both, authorities could not carry out a deportation. In the case-by-case negotiations behind individual deportations that answered these questions, along with treaties and agreements to facilitate deportations, immigration officials and diplomats added a layer to the international legal regime.

Through much of the nineteenth century, as several European countries help illustrate, nations operating immigrant removal policies did not necessarily tie the destination of removal to an immigrant’s country of citizenship. In 1793, for example, the British government expelled the French politician and diplomat Charles Maurice de Talleyrand. He had sought refuge from the French Revolution, and when Britain expelled him, he did not go to France but to the United States.⁶⁷ Partly this choice of destination was humanitarian, a removal to France might have led to his death; it most certainly would have led to his prosecution. Yet, Tallyrand’s destination was part of a larger whole. Countries with formal removal policies expelled immigrants, but not necessarily to their countries of origin. Oftentimes, the immigrant could actually choose which border to leave from and where to go next. Throughout the nineteenth century, Belgium, France, and the Netherlands allowed expellees “a choice of border.”⁶⁸ Expulsions were, then, largely unilateral—those on the receiving side were not involved in the process.

German authorities were among the first in Europe to tie the destination of a removal to an immigrant’s country of origin. They did this in both the sending and receiving of immigrant removals. First Prussian and then the newly constituted German Reich expelled immigrants in the direction of their country of origin. German authorities, therefore, restricted the ability of a deportee to choose the border from which he or she would leave the country.⁶⁹ The German state also closed its borders to the unauthorized expulsion of third-country immigrants along its western borders. It did so by increasing regulation at its borders and through a series of international treaties. In one treaty with Belgium, Germany agreed to receive German expellees from Belgium, but refused to allow Belgium to expel non-Germans into German territory without authorization. The treaty also contained provisions regulating the travel of third-party deportees; expellees who needed to travel through German territory on their return to their country of origin, like Russia, were allowed to do so only if they had enough money to pay for their transit.⁷⁰ Each treaty added to the international legal regime.

When Germany made the destination important to immigrant removals, it forced other countries to do the same. During the 1880s, Belgium continued to remove individuals to its borders based in large part on the immigrant’s choice of destination, but it had become more difficult in light of recent German policies and treaties. If, for example, Belgium wanted to expel a German, it could not do so until the German state acknowledged that the alien was a German. Soon the Belgian state signed treaties with other states structuring its ability to remove immigrants from its territory. Belgium and the Netherlands signed a bilateral agreement in 1888 stating that Dutch authorities agreed to allow Belgian authorities to expel Scandinavians and Northern Germans through their territory. French and Belgian authorities reached a similar agreement in 1896. In 1897, a British-Belgian agreement stipulated that each country had to accept its own poor migrants or give free passage to those immigrants through their territories.⁷¹ This regional system of treaties contributed to an emerging layer of the international legal regime facilitating deportations.

Officials in the United States designed a deportation policy rather than an expulsion policy. The deportation process required international negotiations that could be complicated by the particulars of individual cases. The experiences of Lily Taquensk and Flora Gendron provide examples of the ways women’s marital status determined their citizenship and affected the destination of deportation. Under U.S. law, a husband’s citizenship determined a wife’s citizenship.⁷² Lily Taquensk had originally immigrated to the United States from Russia in 1903. A year later she moved to Canada and married a Canadian citizen.⁷³ At some point between 1904 and 1908, she reentered the United States from Canada. It is not clear in the records why or if she came alone or with her husband. U.S. immigration officials arrested her on November 25, 1908, and ordered her deportation. As Canadian law, like U.S. law, made a woman’s citizenship derivative of her husband’s, they sent a request to Canadian immigration authorities for approval of the deportation. The case of Flora Gendron documents even more starkly the ways marriage determined a woman’s citizenship and the destination of a deportation. Flora had been born on U.S. soil, making her a U.S. citizen. She moved to Canada, where she married a Canadian citizen.⁷⁴ At some time unspecified in the documents, she and her husband then moved to the United States and, in early 1915, to Mexico, where Gendron worked as a prostitute. After six months, the Gendrons planned to move to Cuba, where, according to immigration records, she intended to continue working as a prostitute. Immigration agents arrested Gendron in Florida as she made her way to Cuba. When determining where to deport her, U.S. officials noted her time in Mexico, but understood that Mexican authorities would not approve her deportation because she had no claims to legal residency in Mexico or Mexican citizenship. As in Taquensk’s case, U.S. immigration agents approached the Canadian authorities about deporting Gendron to Canada, because her marriage had ascriptively made her a Canadian.

Countries on the receiving end of a deportation typically granted approval for U.S. deportations quickly, but, as both Lily Taquensk’s and Flora Gendron’s cases also document, the process could take weeks or even months. Canadian officials initially refused Gendron’s deportation on grounds that her birth on U.S. soil made her a U.S. citizen. U.S. officials disagreed, arguing Gendron’s marriage made her a Canadian citizen. Negotiations dragged on for five months, until late 1915, when the Canadians approved her deportation. All the while, Flora Gendron waited in departmental custody in the United States. When Canadian officials finally sent their approval to Washington, U.S. officials added her to a group of deportees, known as a deportation party, in Seattle and, after being transferred to the custody of several different agents, furnished her with a ticket to Toronto.⁷⁵ In Taquensk’s case, five weeks passed before Canadian officials sent instructions for U.S. authorities to carry out the deportation. U.S. authorities deported her on January 2, 1909.⁷⁶ Neither case file spells out why the approval process took so long, but most likely officials needed the weeks and months to confirm the women’s marriages with provincial and local bureaucracies that kept marriage records. Officials could have even have had to contact churches where the ceremonies took place. Whatever the case, Canadian officials eventually approved each deportation.

U.S. officials answered the destination question differently for people of Chinese heritage than for immigrants of other racial and ethnic heritages. Under one of the earliest laws of Chinese exclusion in the United States, the 1888 Scott Act, people of Chinese heritage living in other nations—like Canada or Mexico—fell under the jurisdiction of Chinese exclusion. The destination of a deportation in cases involving immigrants of Chinese heritage largely defaulted to China rather than the country of last residence. Congress repeated this in section 2 of the 1892 Geary Act, which stated,

That any Chinese person or person of Chinese descent, when convicted and adjudged under any of said laws to be not lawfully entitled to be or remain in the United States, shall be removed from the United States to China, unless he or they shall make it appear to the justice, judge, or commissioner before whom he or they are tried that he or they are subjects or citizens of some other country, in which case he or they shall be removed from the United States to such country: Provided, That in any case where such other country of which such Chinese person shall claim to be a citizen or subject shall demand any tax as a condition of removal of such person to that country, he or she shall be removed to China.⁷⁷

By 1911, U.S. immigration authorities attempted to change the default destination in some deportations of people of Chinese heritage. This change was driven by budgetary concerns (explained in the first chapter) and ways that immigration officials believed Chinese immigrants to be using deportation policy to their own ends. U.S. officials began to complain that some Chinese immigrants who were residents of Canada or Mexico seemed to be using Chinese exclusion as a way to secure passage to China on the U.S. dime; immigrant agents labeled them “free trippers.” To stop free trippers, U.S. officials tried to deport Chinese immigrants to the country they migrated from last. As they did so, U.S. officials changed the destination of deportation. During 1910, for example, when 185 Chinese were arrested at Nogales, Arizona, under Chinese exclusion laws, all of them were sent to China. In 1911, immigration inspectors arrested only two Chinese immigrants in Nogales. The supervising inspector of the Mexican border understood the different apprehension totals as a result of the changing policy in determining the destination. He wrote that the “decrease in the number of arrests … is unquestionably due to the fact that in former years a considerable number of Chinese intentionally crossed into the United States for the purpose of being arrested and returned to their native land at the Government’s expense.” Along the U.S.-Mexico border, this meant that Chinese immigrants who had crossed into the United States were often deported to Mexico. The result, as the supervising inspector saw it, was “that this procedure has broken up a pernicious practice and resulted in the saving of thousands of dollars to the government.”⁷⁸

The need to secure the receiving country’s approval complicated U.S. officials’ efforts to carry out deportations of people of Asian heritage to Canada because, while Canada did not restrict Chinese workers as a race as the United States did, at least not until 1923, it did discriminate against Chinese immigrants by imposing a head tax. In 1911, U.S. immigration agents failed to get Canadian approval to deport a man named Yuen Pak Sune. In 1911, Yuen Pak Sune traveled from China to Vancouver, British Columbia, then took the train to Montreal, and crossed the border into the United States with a group of Chinese immigrants. Since Yuen Pak Sune was not staying in Canada, he did not pay the Canadian head tax. The first head tax was $50. The Canadian parliament raised it in 1900 to $100 and in 1903 to $500.⁷⁹ Upon Yuen’s crossing the border into the United States, U.S. immigration officers arrested Yuen for unlawful entry and placed him in custody in Boston, where the immigration commissioner ordered his deportation to Canada. While this was not a case of a “free tripper,” U.S. officials tried to cut down the costs of deportation by deporting him to Canada, rather than China. Canadian officials would approve deportations from the United States of people of Chinese heritage only if the deportee paid a head tax. Yuen, however, could not afford to pay the Canadian head tax and, consequently, Canadian officials refused to approve the deportation.⁸⁰ After the Canadians refused to permit Yuen’s deportation there, U.S. officials rearrested Yuen and processed him under Chinese exclusion laws. This jurisdictional switch allowed officials to deport him to China, despite the greater expense.⁸¹

Another similar case involved Hen Lee. In 1916, U.S. immigration officials arrested Hen Lee and ordered his deportation to China. Hen, who had entered the United States from Canada, wanted to remain in North America. His lawyers argued that the particular provision of immigration law under which he had been ordered deported specifically stated that the deportee should be “removed to the country from whence he last came.” The court found that Hen’s appeal had merit and changed his deportation destination to Canada. But, Hen could not afford to pay the head tax and the Canadians would not let him in. Therefore, immigration officials rearrested Hen under Chinese exclusion laws and deported him to China.⁸²

Since U.S. officials were also on the receiving end of deportations, they had to provide approval to countries trying to deport a U.S. citizen. Canadian lawmakers passed their first deportation law in 1906 and the list of deportable immigrants included “any person landed in Canada who, within two years, has become a charge upon public funds, whether municipal, provincial or federal, or an inmate of or a charge upon any charitable institution.” The Canadian government could also deport prostitutes and a certain class of Chinese immigrants.⁸³ In 1909, the Canadians wanted to deport a man named Nazair Chartier to the United States. Chartier was in a hospital for the mentally ill; in deporting him, Canadian officials wanted U.S. institutions to bear the cost of his hospitalization. A striking fact in this case was that Chartier was a Canadian citizen. The Canadians found him deportable because he had spent most of the previous ten years living in the United States. He had returned to Canada only the year before he fell ill. The Canadian government believed in this case that long-term residency trumped formal citizenship. U.S. officials refused to authorize the deportation and, in a theme examined in Chapter 6, prioritized Chartier’s formal citizenship, not his long-term residency. Chartier remained in Canada.⁸⁴

When the Canadian government moved to deport Asian immigrants who had come from the United States, officials encountered systemic problems such as those U.S. authorities had experienced in trying to deport people of Chinese heritage. Hirokichi Yasui is a case in point. Yasui, a Japan-born lawful resident of the United States, went to Canada in 1920 to conduct business in Vancouver, British Columbia. But when he tried to return to the United States at Blaine, Washington, border patrol agents refused his readmission. (By this time, the anti-Asian shape of U.S. policy had been expanded past Chinese migrants to all people of Asian heritage.) As a result, Canada bore the cost of deporting him to Japan.⁸⁵ Canadian officials had dealt with similar cases before. For example, in 1912, the head of Canadian immigration sent out a memorandum to border agents, warning them to be careful about admitting immigrant railway workers from the United States, many of whom were Chinese. If these workers violated Canadian law, U.S. officials would not generally grant approval for their deportation to the United States, the country of their last lawful residence. Canada would then have to pay the greater expense of deporting the immigrant workers back to China.⁸⁶

Deportations of U.S. citizens from Mexico to the United States sometimes involved other diplomatic communications than those used in deportations from the United States or deportations from Canada. In 1908, Mexican lawmakers revised the government’s power of immigrant removal that dated back to its original constitution in 1824.⁸⁷ Article 7 of the 1908 law stated, “when a foreigner shall have entered after this law shall have gone into effect and in violation of its provisions the government may order that he be sent back to the country whence he came if he shall not have resided in the Republic for more than three years.”⁸⁸ This Mexican law assigned jurisdiction to the minister of the interior and assigned the hearing of removal cases to three-member boards of immigration.⁸⁹ Soon after the Mexican Revolution, officials revised deportation policy again. In 1917, under Article 33 of the new Mexican constitution, a deportee need not be informed of the grounds for his or her deportation. This differed from U.S. or Canadian policies, where people knew the charges during the proceedings. As a U.S. consular official noted in 1922, however, it was “established policy” that “an American citizen ordered deported from Mexico be informed of the charges against him and be given an opportunity to defend himself against such charges, as well as ample time within which to arrange his affairs in case the deportation is carried out.”⁹⁰ Mexican officials, therefore, may not have always told a deportee of the grounds for removal at the time of his or her arrest, but they informed deportees of the grounds after a request by the U.S. State Department.

When George Wilkins was deported from Mexico in 1925, he asked for an explanation for his deportation as well as help in overturning his removal—he wanted U.S. consular officials to exercise the international appeal. This international appeal looked slightly different from the appeal exercised in the German or Austro-Hungarian cases, or Chinese appeals in the United States, because it took place after the removal. H. F. Arthur Schoenfeld, U.S. chargé d’affaires in Mexico took up the case and wrote to General Aarón Sáenz, Mexico’s foreign affairs secretary. “I inform you that the action of the Mexican Government,” Sáenz replied, “was based on the request of persons established in the district on the ground that this gentlemen held a position in connection with police matters and on reports rendered by the authorities of this District from which it appears that the above-mentioned foreigner engaged in gambling operations and … his character thoroughly immoral.” The U.S. officials informed Wilkins of the grounds for his deportation, but in light of them, U.S. consular officials declined to pursue an international appeal.⁹¹

The majority of the deportations from Mexico to the United States seem to have involved prostitution, gambling, and drugs. In 1920, Mexican authorities deported several U.S. citizens employed in and running a house of prostitution in Nuevo Laredo. They included proprietor John W. Donahue, a former deputy sheriff of Bexar County, Texas, and Mrs. Gussie Carter, Miss Mabel Smith, and Miss Geraldine Riokabaugh.⁹² In 1923, Thomas A. Green found himself deported from Tijuana to the United States. Green was a card dealer in a licensed gambling house in Tijuana that served largely American clients. He fought his deportation; he wanted to return to his job and stay near his family. A U.S. official contacted the Mexican authorities, which informed him that the grounds for Green’s removal also included drugs.⁹³ That same year, U.S. citizen David O. Guaderrama was deported from Mexicali. Guaderrama operated a club called the Black Cat, and in addition to running a house of prostitution, was long suspected of smuggling drugs into the United States.⁹⁴ In all these cases, U.S. State Department officials intervened diplomatically to determine the grounds of a deportation, but they refused to exercise the international appeal.

A smaller subset of deportees from Mexico were U.S. citizens involved in public utilities, mining, petroleum, and textiles who ran afoul of the Mexican revolutionary government after 1917. In 1923, Harvey S. Leach fell into this category. At the time of his deportation, Leach managed the British-owned Tampico Electric Company and he had lived in Mexico for thirty-three years. Leach and some of his supporters asked the U.S. government to launch an international appeal. Among Leach’s supporters was W. F. Buckley (father to conservative author and commentator William F. Buckley, Jr.), who had himself been deported on similar grounds. At the request of Leach and people like Buckley, U.S. State Department officials appealed Leach’s deportation several times.⁹⁵ In response to the last appeal, General Sáenz informed them “that in view of the strike situation at Tampico President Obregón could not at that time revoke his [Leach’s] order of expulsion.” The grounds for Leach’s deportation, in other words, came from Leach’s response to a labor strike and mistreatment of Mexican workers. In light his actions, the revolutionary government would not grant the appeal and overturn the deportation.⁹⁶