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