The dispute with the United States pursued a very different course. In

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_.

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