its earliest stages it was dealt with by minor diplomatic and consular
officials very much in the spirit of Lord John Russell,[87] but when in
1880 the Russian Government began to expel American Jews from St.
Petersburg, the question was taken in hand by the Secretary of State as
one of gravity. It was at once recognised that a religious
discrimination between American citizens could not be tolerated in any
American Treaty. This was quite apart from the question of the legal
interpretation of the Treaty of 1832.[88] That question, however, was
dealt with vigorously by Mr. Blaine in July 1881. He took the broad view
that the intention of the United States in 1832 was not, and could not
have been, that which the Russian Government read into the Treaty, that
the Russian interpretation was indefensible on moral grounds, and that
on such questions local law cannot be permitted to override the express
terms of a Treaty.[89] On this basis the United States patiently sought
a reversal of the Russian view, but without success. The fight lasted
thirty years. Eventually American public opinion became agitated, an
organised movement for the termination of the obnoxious treaty was set
on foot, and in December 1911 the House of Representatives at Washington
sent a strongly worded joint resolution to the Senate declaring that
Russia had violated the Treaty and calling upon the President to
denounce it. The Russian Ambassador in Washington expressed official
disapproval of the resolution, but President Taft acted upon it without
waiting for the Senate, and denounced the Treaty on December 15.
Thereupon the Senate contented itself with a joint resolution approving
the action of the President.[90]
The question of the status of Jews in foreign lands has also arisen in
Palestine and Morocco. In 1882 the Turkish Government, fearing a Zionist
propaganda, prohibited the settlement of foreign Jews in the Holy Land.
The United States protested, and in 1887 and 1888 similar action was
taken by Great Britain and France. In the following year the
restriction was removed.[91] In the case of Morocco, Great Britain
solved the question in advance by stipulating in her Treaty with that
country, negotiated in 1855, that her Christian, Mohammedan, and Jewish
subjects visiting and residing in Morocco should be treated on an equal
footing.[92]
DOCUMENTS.
* * * * *
ART. XIV.--TREATY OF CARLOWITZ BETWEEN THE EMPEROR AND THE GRAND SULTAN,
_Jan. 26, 1699_.[93]
XIV. Trade shall be free for the Subjects of both Partys, in all the
Kingdoms and Dominions of both Empires, according to the antient sacred
Capitulations. And that it may be carry'd on by both Partys with Profit
and without Fraud and Deceit, the same shall be settled by Stipulations
between Commissarys deputed on both sides, well vers'd in Merchandize,
at the time of solemn Embassys on both sides, and as has been observ'd
with other Nations in Friendship with the Sublime Empire, so his
Imperial Majesty's subjects of what Nation soever, shall enjoy the
Security and Advantage of Trade in the Kingdoms of the Sublime Empire,
as well as the usual Privileges in a fitting manner.
("Collection of Treatys of Peace and Commerce," London, 1732, vol. iv.
p. 298.)
* * * * *
_Interpretation by Austrian Government. Instructions to Police of Lower
Austria, Dec. 28, 1815._
"All differences established between Turkish Jews and other subjects of
the Ottoman Porte appear contrary to the spirit of the Treaties. These
speak of 'Turkish subjects' without making any exception. It is
consequently to this quality only that one must have regard, and not in
any case to the religion or profession of individuals."
(Quoted by M. Carnot in Debate in French Chamber. _Moniteur_, May 29,
1841.)
* * * * *
ARTS. I, III AND VI OF FRANCO-SWISS TREATY, MAY 30, 1827.
Article premier.--Les Français seront reçus et traités, dans chaque
canton de la Confédération, relativement à leurs personnes et à leurs
propriétés, sur le même pied et de la même manière que le sont ou
pourront l'être à l'avenir les ressortissants suisses des autres
cantons. Tout genre d'industrie et de commerce permis aux ressortissants
suisses des divers cantons le sera également aux Français et sans qu'on
puisse exiger d'eux aucune condition pécuniaire ou autre plus onéreuse.
Lorsqu'ils prendront domicile ou formeront un établissement dans les
cantons qui admettent les ressortissants de leurs co-états, ils ne
seront également astreints à aucune autre condition que ces derniers.
Art. 3.--Les Suisses jouiront en France des mêmes droits et avantages
que l'article premier assure aux Français en Suisse, de telle sorte qu'à
l'égard des cantons qui, sous les rapports spécifiés audit article
premier, traiteront les Français comme leurs propres ressortissants,
ceux-ci seront, sous les mêmes rapports, traités en France comme les
nationaux. Sa Majesté Très Chrétienne garantit aux autres cantons les
mêmes droits et avantages dont ils feront jouir ses sujets.
Art. 6.--Les Français établis en Suisse, de même que les Suisses établis
en France en vertu du traité de 1803, continueront à jouir des droits
qui leur étaient acquis. Toutes les dispositions de la présente
convention leur seront d'ailleurs applicables.
(Brisac: "Ce que les Israélites de la Suisse doivent à la France," pp.
10-11.)
* * * * *
_Interpretation by French Negotiator. Secret Note to the Swiss Diet,
August 7, 1826._
Le premier point qui a paru avoir besoin de quelques éclaircissements
est relatif aux israélites sujets du roi, lesquels, en cette dernière
qualité, pourraient se croire autorisés à réclamer, dans tous les
cantons suisses, le bénéfice de l'article 5 du projet de traité arrêté
entre la commission de la Diète et moi. Je ferai observer à cet égard
que, cet article premier n'accordant aux Français que les droits qui
sont accordés par chaque canton suisse aux ressortissants des autres
cantons, il s'ensuit nécessairement que, dans ceux des cantons où le
domicile et tout nouvel établissement serait interdit, par les lois du
canton souverain, aux individus de la religion de Moïse, les sujets du
roi qui professent cette religion ne sauraient se prévaloir de l'article
en question pour réclamer une exception à la règle générale du canton
suisse. Il est toutefois bien entendu que c'est une conséquence directe
de l'article 6 du projet de traité, que ceux d'entre les israélites
d'origine française qui se seraient établis sur le territoire de la
Confédération sous le régime de l'acte de médiation et en vertu du
traité de 1803, continueront à jouir des droits qui leur étaient acquis.
(Brisac: _op. cit._, pp. 12-13.)
* * * * *
_Interpretation by France (1835). Speech by King Louis Philippe to a
Deputation from the Consistoire Israélite, November 5, 1835._
Le roi a répondu:
"Oui, dans tous les temps j'ai regardé comme injustes et impolitiques
les mesures qui établissaient entre les citoyens d'une même nation des
différences de qualifications sociales fondées sur la diversité des
croyances religieuses. Comme roi j'ai soutenu ce principe, et je vous ai
déjà témoigné plusieurs fois combien j'avais joui qu'il m'eût été
réservé de vous en faire l'application. J'espère qu'elle deviendra
générale, je le désire beaucoup. Je crois que c'est dans l'intérêt bien
entendu de tous les peuples, et la raison doit finir par l'emporter sur
les préjugés, comme l'eau qui tombe goutte à goutte finit par percer le
plus dur rocher. Tels sont au moins mes désirs et mes espérances; mais
je ne puis me mêler de ce qui se passe dans les autres États, à moins
que les intérêts français n'en soient lésés, ainsi que cela est arrivé
dans le canton de Bâle campagne. J'avoue que j'ai été bien aise d'avoir
cette occasion de bien établir que sous mon règne tous les Français
jouissent des mêmes droits et que tous obtiennent la même protection de
la part de mon gouvernement. J'espère que mes efforts ne seront pas
infructueux et que, dans l'affaire même dont vous m'entretenez, le
canton reviendra sur une détermination aussi contraire à nos traités
avec la Suisse qu'à l'esprit du siècle où nous vivons. Pour moi, je suis
heureux d'avoir donné l'exemple de votre complète émancipation, et je
vous remercie de la justice que vous rendez à mes actes et à mes
intentions; je suis bien touché de ce que vous venez de m'exprimer."
(_Moniteur_, Nov. 12, 1835.)
* * * * *
EXTRACT FROM FRANCO-SWISS TREATY OF ESTABLISHMENT, _June 30, 1864_.
"Tous les Français sans distinction de culte seront reçus et traités à
l'avenir dans chacun des Cantons suisses sur le même pied que les
ressortissants chrétiens des autres Cantons."
(Brisac: _op. cit._, p. 53.)
* * * * *
ART. I. ANGLO-SWISS TREATY, _September 6, 1855_.
Article I. The subjects of Her Britannic Majesty shall be admitted to
reside in each of the Swiss Cantons on the same conditions, and on the
same footing, as citizens of the other Swiss Cantons. In the same
manner, Swiss citizens shall be admitted to reside in all the
territories of the United Kingdom of Great Britain and Ireland on the
same conditions, and on the same footing as British subjects.
Consequently, the subjects and citizens of either of the two Contracting
Parties shall, provided they conform to the laws of the country, be at
liberty, with their families, to enter, establish themselves, reside,
and remain in any part of the territories of the other. They may hire
and occupy houses and warehouses for the purposes of residence and
commerce, and may exercise, conformably to the laws of the country, any
profession or business, or carry on trade in articles of lawful commerce
by wholesale or retail, and may conduct such trade either in person or
by any brokers or agents whom they may think fit to employ, provided
such brokers or agents shall themselves also fulfil the conditions
necessary for being admitted to reside in the country. They shall not be
subject to any taxes, charges or conditions in respect of residence,
establishment, passports, licences to reside, establish themselves, or
to trade, in respect of permission to exercise their profession,
business, trade, or occupation, greater or more onerous than those which
are or may be imposed upon the subjects or citizens of the country in
which they reside; and they shall, in all these respects, enjoy every
right, privilege, and exemption which is or may be accorded to subjects
or citizens of the country, or to subjects or citizens of the most
favoured nation.
(Bernhardt, "Handbook of Treaties, &c., relating to Commerce," Lond.
1908, pp. 915-916.)
* * * * *
ART. I. AMERICAN-SWISS TREATY, _November 6, 1855_.
Art. I. "The citizens of the United States of America and the citizens
of Switzerland shall be admitted and treated upon a footing of
reciprocal equality in the two countries, where such admission and
treatment shall not conflict with the constitutional or legal
provisions, as well Federal as State and Cantonal, of the contracting
parties.
(_Pub. Amer. Jew. Hist. Soc._, vol. xi. p. 15.)
* * * * *
_Interpretation by the United States, 1857. Letter from the Assistant
Secretary of State to the Jews of Baltimore._
_August 13, 1857._
In compliance with your request, I enclose herewith a copy of the treaty
between the United States and Switzerland which was proclaimed in 1855.
It was originally concluded in 1850, but was amended with a view to
avoid some objections which were made on the very subject to which you
refer. In its present form, although it may not remove some
difficulties with reference to those who profess the Israelitish faith,
yet I do not see that it discriminates against this class of our
citizens in any mode whatever. Undoubtedly in some portions of the
Confederation the local laws are less liberal to Israelites than to
others, and this is deeply to be regretted; but the Government of the
United States has no control over the legislation of a foreign State and
can only employ its influence and good offices to relieve the
difficulties which such legislation may impose in any given case.
JOHN APPLETON.
(_Ibid._, p. 23.)
* * * * *
_Action by the United States, 1861. Instruction to Mr. Fogg, Minister to
Switzerland._
_September 14, 1861._
SIR,--Among the important instructions addressed to your predecessor are
those concerning the restrictions of certain of the Swiss Cantons
against citizens of the United States professing Judaism--a subject
which received at Mr. Fay's hands a large share of earnest attention and
upon which he addressed the department repeatedly and at much length. It
is very desirable that his efforts to procure the removal of the
restrictions referred to, which, though not completely successful, have
no doubt had much effect in smoothing the way to such a result, should
be followed up by you. You will therefore, after having fully acquainted
yourself with what Mr. Fay has done in the premises and with the views
of the department as expressed to him in the despatches on file in the
Legation, take such steps as you may deem judicious and legal to advance
the benevolent object in question. It is not doubted that further proper
appeals to the justice and liberality of the authorities of the several
Cantons whose laws discriminate against Israelitish citizens of the
United States, will result in a removal of the odious restrictions and a
recognition of the just rights of those citizens.
WILLIAM H. SEWARD,
_Secretary of State_.
(_Ibid._, pp. 47-48.)
* * * * *
ART. I. RUSSO-AMERICAN TREATY, _December_ 18, 1832.
Article I. There shall be between the territories of the high
contracting parties a reciprocal liberty of commerce and navigation.
The inhabitants of their respective states shall mutually have liberty
to enter the ports, places and rivers of each party wherever foreign
commerce is permitted. They shall be at 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, on condition
of submitting to the laws and ordinances there prevailing, and
particularly to the regulations in force concerning commerce.
("Brit. and For. State Papers," vol. xx. p. 267.)
* * * * *
_Interpretation by United States, 1881. Dispatch of Secretary of State
to the American Minister in St. Petersburg._
DEPARTMENT OF STATE, WASHINGTON,
_July_ 29, 1881.
SIR,--...The case would clearly be one in which the obligation of a
treaty is supreme and where the local law must yield. These questions of
the conflict of local law and international treaty stipulations are
among the most common which have engaged the attention of publicists,
and it is their concurrent judgment that where a treaty creates a
privilege for aliens in express terms it cannot be limited by the
operations of domestic law without a serious breach of the good faith
which governs the intercourse of nations. So long as such a conventional
engagement in favor of the citizens in another State exists, the law
governing natives in like cases is manifestly inapplicable.
I need hardly enlarge on the point that the Government of the United
States concludes its treaties with foreign States for the equal
protection of all classes of American citizens. It can make absolutely
no discrimination between them, whatever be their origin or creed. So
that they abide by the laws at home or abroad it must give them due
protection and expect like protection for them. Any unfriendly or
discriminatory act against them on the part of a foreign power with
which we are at peace would call for our earnest remonstrance, whether a
treaty existed or not. The friendliness of our relations with foreign
nations is emphasized by the treaties we have concluded with them. We
have been moved to enter into such international compacts by
considerations of mutual benefit and reciprocity, by the same
considerations, in short, which have animated the Russian Government
from the time of the noble and tolerant declarations of the Empress
Catherine in 1784 to those of the ukase of 1860. We have looked to the
spirit rather than to the letter of those engagements, and believed that
they should be interpreted in the broadest way; and it is therefore a
source of unfeigned regret to us when a Government, to which we are
allied by so many historical ties as to that of Russia, shows a
disposition in its dealings with us to take advantage of technicalities,
to appeal to the rigid letter and not the reciprocal motive of its
international engagements in justification of the expulsion from its
territories of peaceable American citizens resorting thither under the
good faith of treaties and accused of no wrong-doing or of no violation
of the commercial code of the land, but of the simple adherence to the
faith of their fathers....
I can readily conceive that statutes bristling with difficulties remain
unrepealed in the volumes of the law of Russia as well as of other
nations. Even we ourselves have our obsolete "blue laws," and their
literal enforcement, if such a thing were possible, might to-day subject
a Russian of freethinking proclivities, in Maryland or Delaware, to the
penalty of having his tongue bored through with a red-hot iron for
blasphemy. Happily the spirit of progress is of higher authority than
the letter of outworn laws, and statutory enactments are not so
inelastic but that they relax and change with the general advancement of
peoples in the path of tolerance.
The simple fact that thousands of Israelites to-day pursue their
callings unmolested in St. Petersburg, under the shadow of ancient
proscriptive laws, is in itself an eloquent testimony to the principle
of progress. And so, too, in Spain, where the persecution and expulsion
of the Jews is one of the most notable and deplorable facts in history,
and where the edicts of the earlier sovereigns remain unrepealed, we see
to-day an offer of protection and assured right of domicile made to
Israelites of every race....
I had the honor in my letter of the 20th ultimo to Mr. Bartholomey to
acquaint him with the general views of the President in relation to this
matter.
I cannot better bring this instruction to a close than by repeating and
amplifying those views which the President so firmly holds, and which he
so anxiously desires to have recognized and responded to by the Russian
Government.
He conceives that the intention of the United States in negotiating the
treaty of December 18, 1832, and the distinct and enlightened reciprocal
engagements then entered into with the Government of Russia, give us
moral ground to expect careful attention to our opinions as to its
rational interpretation in the broadest and most impartial sense; that
he would deeply regret, in view of the gratifying friendliness of the
relations of the two countries which he is so desirous to maintain, to
find that this large national sentiment fails to control the present
issue, or that a narrow and rigid limitation of the construction
possible to the treaty stipulation between the two countries is likely
to be adhered to; that if, after a frank comparison of the views of the
two Governments, in the most amicable spirit and with the most earnest
desire to reach a mutually agreeable conclusion, the treaty stipulations
between the United States and Russia are found insufficient to determine
questions of nationality and tolerance of individual faith, or to secure
to American citizens in Russia the treatment which Russians receive in
the United States, it is simply due to the good relations of the two
countries that the stipulations should be made sufficient in these
regards; and we can look for no clearer evidence of the good will which
Russia professes toward us than a frank declaration of her readiness to
come to a distinct agreement with us on these points in an earnest and
generous spirit.
I have observed that in your conferences on this subject heretofore with
the minister of foreign affairs, as reported in your dispatches, you
have on some occasions given discreet expression to the feelings of
sympathy and gratification with which this Government and people regard
any steps taken in foreign countries in the direction of a liberal
tolerance analogous to that which forms the fundamental principle of our
national existence. Such expressions were natural on your part and
reflected a sentiment which we all feel. But in making the President's
views known to the minister I desire that you will carefully subordinate
such sentiments to the simple consideration of what is conscientiously
believed to be due to our citizens in foreign lands. You will distinctly
impress upon him that, regardful of the sovereignty of Russia, we do not
submit any suggestions touching the laws and customs of the Empire
except where those laws and customs conflict with and destroy the rights
of American citizens as assured by treaty obligations.
You can further advise him that we can make no new treaty with Russia
nor accept any construction of our existing treaty which shall
discriminate against any class of American citizens on account of their
religious faith.
I cannot but feel assured that this earnest presentation of the views of
this Government will accord with the sense of justice and equity of that
of Russia and that the questions at issue will soon find their natural
solution in harmony with the noble spirit of tolerance which pervaded
the ukase of the Empress Catherine a century ago, and with the
statesmanlike declaration of the principle of reciprocity found in the
late decree of the Czar Alexander II in 1860.
You may read this dispatch to the minister for foreign affairs, and
should he desire a copy you will give it to him.
JAMES G. BLAINE.
("For. Relat. of the U.S.," 1881, pp. 1030 _et seq._)
* * * * *
DENUNCIATION BY UNITED STATES, 1911.
_Resolution of the House of Representatives, December 13, 1911._
Resolved, etc., That the people of the United States assert as a
fundamental principle that the rights of its citizens shall not be
impaired at home or abroad because of race or religion; that the
Government of the United States concludes its treaties for the equal
protection of all classes of its citizens, without regard to race or
religion; that the Government of the United States will not be a party
to any treaty which discriminates, or which by one of the parties
thereto is so construed as to discriminate, between American citizens on
the ground of race or religion; that the Government of Russia has
violated the treaty between the United States and Russia, concluded at
St. Petersburg, December 18, 1832, refusing to honor American passports
duly issued to American citizens, on account of race and religion; that
in the judgment of the Congress the said treaty, for the reasons
aforesaid, ought to be terminated at the earliest possible time; that
for the aforesaid reasons the said treaty is hereby declared to be
terminated and of no further force and effect from the expiration of one
year after the date of notification to the Government of Russia of the
terms of this resolution, and that to this end the President is hereby
charged with the duty of communicating such notice to the Government of
Russia.
("Congressional Record," xlviii. 280, 304-305.)
* * * * *
_Resolution of the Senate, December 20, 1911._
Whereas the treaty of commerce and navigation between the United States
and Russia concluded on the 18th day of December, 1832, provides in
Article XII thereof that it "shall continue in force until the first day
of January in the year of our Lord one thousand eight hundred and
thirty-nine, and if one year before that day one of the high contracting
parties shall not have announced to the other by an official
notification its intention to arrest the operation thereof this treaty
shall remain obligatory one year beyond that day, and so on until the
expiration of the year which shall commence after the date of a similar
notification"; and
Whereas on the 17th day of December, 1911, the President caused to be
delivered to the Imperial Russian Government by the American Ambassador
at St. Petersburg an official notification on behalf of the Government
of the United States announcing intention to terminate the operation of
this treaty upon the expiration of the year commencing on the 1st day of
January 1912; and
Whereas said treaty is no longer responsive in various respects to the
political principles and commercial needs of the two countries; and
Whereas the constructions placed thereon by the respective contracting
parties differ upon matters of fundamental importance and interest to
each; Therefore be it
Resolved by the Senate and House of Representatives of the United States
of America in Congress assembled, That the notice thus given by the
President of the United States to the Government of the Empire of Russia
to terminate said treaty in accordance with the terms of the Treaty is
hereby adopted and ratified.
(_Ibid._, pp. 493-522.)
* * * * *
ARTS. I AND XI, ANGLO-RUSSIAN TREATY, _January 12, 1859_.