the two High Contracting Parties, reciprocal freedom of commerce and
navigation. The subjects of each of the two Contracting Parties,
respectively, shall have liberty freely and securely to come, with their
ships and cargoes, to all places, ports and rivers in the dominions and
possessions of the other, to which other foreigners are or may be
permitted to come; and shall, throughout the whole extent of the
dominions and possessions of the other, enjoy the same rights,
privileges, liberties, favours, immunities and exemptions in matters of
commerce and navigation, which are or may be enjoyed by native subjects
generally.
It is understood, however, that the preceding stipulations in no wise
affect the laws, decrees, and special regulations regarding commerce,
industry, and police, in vigour in each of the two countries, and
generally applicable to all foreigners.
Article XI. The subjects of either of the two High Contracting Parties,
conforming themselves to the laws of the country, shall have:--
1. Full liberty, with their families, to enter, travel, or reside in any
part of the dominions and possessions of the other Contracting Party.
2. They shall be permitted, in the towns and ports, to hire or possess
the houses, warehouses, shops and premises, which may be necessary for
them.
3. They may carry on their commerce, either in person or by any agents
whom they may think fit to employ.
4. They shall not be subject, in respect of their persons or property,
or in respect of passports, licences for residence or establishment, nor
in respect of their commerce or industry, to any taxes, whether general
or local, nor to imposts or obligations of any kind whatever, other or
greater than those which are or may be imposed upon native subjects.
(Bernhardt: _op. cit._, pp. 721, 724-725.)
* * * * *
_Interpretation by Great Britain, 1862 and 1881. Despatch from Lord
Granville to H.B.M. Ambassador at St. Petersburg._
_Earl Granville to Sir E. Thornton._
FOREIGN OFFICE,
_December 28th, 1881_.
SIR,--In my preceding despatch of to-day I have discussed the question
whether Mr. Lewisohn, in the arbitrary expulsion from Russia to which he
was subjected in September of last year, was treated in accordance with
the Russian law as applied to foreign Jews. It now remains to be
considered whether Her Majesty's Government are entitled to claim for a
British subject of the Jewish faith immunity from the operation of these
laws, under the Treaty between Great Britain and Russia of 1859.
It will be seen that Article I of that Treaty secures to foreigners the
same rights as are enjoyed by native subjects generally, but the
stipulations of that Article are not to affect the laws, decrees, and
special regulations regarding commerce, industry and police in vigour in
each of the two countries, and applicable to foreigners generally; and
again, by Article XI, they are not to be subjected to imposts or
obligations of any kind whatever other and greater than those which are
or may be imposed on native subjects.
The Treaty is no doubt open to two possible constructions: the one, that
it only assures to British subjects of any particular creed the same
privileges as are enjoyed by Russian subjects of the same creed; the
other that the privileges accorded to British subjects are accorded to
all alike, without regard to the religious body to which they belong.
If the latter construction be adopted, British Jews in Russia would be
entitled to be relieved from the disabilities to which native Jews are
liable, but such a construction would also involve the supposition that
Russia had agreed to create a state of things inconsistent with the
traditions of her Government, which could not fail to be a source of
embarrassment to her.
Upon an examination of the archives of this Department, it has been
found that the position of the Jews in Russia formed the subject of a
complaint from certain British subjects of that religion at Warsaw in
1862, and that Her Majesty's Government then came to the conclusion that
they would not be justified in claiming exemption for British Jews in
Russia from disabilities to which their Russian co-religionists were
liable by law.
On that occasion Earl Russell informed Lord Napier, then Her Majesty's
Ambassador at St. Petersburgh, that the effect of the 1st and 11th
Articles of the Treaty was to place British subjects on the footing of
Russian subjects before the law, each class being alike, and one not
more than the other amenable to all general laws applicable in like
cases; that as Russian subjects, being Jews, incurred certain
disabilities, the equality intended and provided for by the Treaty was
not infringed by British subjects who were Jews and resident in Russia
sharing the same disabilities. The despatch went on to say that it would
seem to be beyond the scope and general intent of a Treaty of Commerce
and Navigation if it were to be held to repeal in the persons of
foreigners the legal disabilities to which, for reasons of general State
policy, particular classes of individual natives of the country had been
subjected, and it was hardly to be supposed that such an interpretation
would be accepted or adopted by an independent Government as against
itself.
Her Majesty's Government feel that they cannot now insist upon a
construction of the Treaty at variance with that which was placed upon
it in 1862.
I am, &c.,
GRANVILLE.
("Parl. Paper, Russia," No. 4 (1881), p. 21.)
* * * * *
_Interpretation by Great Britain, 1891. Letter from the Marquis of
Salisbury to Sir Julian Goldsmid._
FOREIGN OFFICE,
_January 29th, 1891_.
SIR,--With reference to the letter from this office of the 16th ultimo
and to previous correspondence respecting the position of British Jews
in Russia, I am directed by the Marquis of Salisbury to inform you that
the question has been fully considered in communication with the Law
Officers of the Crown.
Her Majesty's Government are advised that, so long as the disabilities
to which British and Russian Jews are subjected are substantially the
same, it is not open to Her Majesty's Government to depart from the
interpretation of Treaties laid down in Lord Granville's despatch of
December 28, 1881.
You will find a copy of this despatch on page 21 of the Parliamentary
Paper "Russia No. 4, 1881."
I am, Sir,
Your most obedient, humble Servant,
T. H. SANDERSON.
* * * * *
SIR J. GOLDSMID, BART., M.P.
_Interpretation by Great Britain, 1912. Letter from Sir Edward Grey to
the Conjoint Committee._
FOREIGN OFFICE,
_October 1st, 1912_.
GENTLEMEN,--Secretary Sir E. Grey has had under his careful
consideration your Memorial of August 2nd last on the subject of the
grievances caused by the restrictions imposed in Russia on British
subjects of the Jewish faith in regard to the interpretation of Articles
I and XI of the Treaty of Commerce between this country and Russia of
January 12th, 1859.
I am to inform you that, inasmuch as the construction which should be
placed on the Articles of the Treaty was carefully considered by His
Majesty's Government in 1862, and again in 1881, His Majesty's
Government would not now be able to reverse the decision then arrived
at, and that an attempt to do so, or to interpret and utilise the Treaty
in a sense contrary to the spirit of that decision, would only lead to
its termination by formal notice as provided for by the Treaty at the
end of twelve months. Such result would in no way advance the interests
of those whom you represent, and would in other respects be
disadvantageous to British interests. Sir E. Grey, therefore, regrets
that he is unable to approach the Russian Government in the sense
desired.
I am, Gentlemen,
Your most obedient humble Servant,
EYRE A. CROWE.
THE CONJOINT JEWISH COMMITTEE,
19 FINSBURY CIRCUS, E.C.
("Annual Report, Board of Deputies, 1912," pp. 81-82.)
* * * * *
ART. XIII. ANGLO-MOORISH TREATY, _December 9, 1856_.
Article XIII. All British subjects, whether Mahometans, Jews, or
Christians, shall alike enjoy all the rights and privileges granted by
the present Treaty and the Convention of Commerce and Navigation which
has also been concluded this day, or which shall at any time be granted
to the most favoured nation.
(Bernhardt: _op. cit._, p. 561.)
* * * * *
* * * * *
(_b_) CONSULAR PROTECTION.
Besides natural born and naturalised Jewish subjects of intervening
States, there is another class of Jews on whose behalf protective
interventions have been exercised on grounds of right. These are native
Jews who for one reason or another have acquired Consular Protection
under the Capitulations and other exterritorial privileges enjoyed by
foreign States in Oriental and semi-barbarous countries. The origin of
this protection has already been briefly described.[94]
* * * * *
The exact national status of the persons on whom it is conferred is not
easy to define, but in the Foreign Jurisdiction Orders in Council they
are assimilated with "British subjects" so far as British exterritorial
jurisdiction is concerned,[95] and this roughly has been the practice of
all States exercising Consular Protection.
The system lent itself easily to abuse and fraud, chiefly because
exterritoriality in the countries in which it was exercised generally
carried with it immunity not only from arbitrary exactions but also from
ordinary taxation. Moreover, in the case of native Jews who often
suffered from Moslem fanaticism--chiefly in Morocco and Persia--Consular
Protection was exercised from motives of humanity, and for that purpose
more or less fictitious qualifications were found for them. We get a
curious glimpse of the loose way in which Consular Protection was
granted from the Anglo-Turkish Treaty of 1809. Under the Capitulations
(Arts. LIX and LX) native interpreters and servants of the Embassy were
free of taxes and indeed of Turkish jurisdiction generally. By the
Treaty of 1809 (Art. IX) it was agreed that in future the _berats_ of
interpreters should not issue to "artizans, shopkeepers, bankers and
other persons not acting as interpreters."[96] Owing to this stipulation
and the sensitiveness of the Porte in regard to its jurisdiction over
its own subjects, irregular Protections were discontinued in Turkey.
This, however, was not a source of serious grievance to Jews, as on the
whole they have been extremely well treated in the Ottoman Empire.
It is not generally known--and the fact may prove of peculiar importance
at the present moment--that all Russian Jews settled in Palestine are,
on certain conditions, entitled to claim British protection and so much
of the status of British subjects as this privilege implies. In 1849,
when there was a considerable influx of Russian Jews into Jerusalem, the
Russian Government, having no Consul in the city and for other reasons,
desired to get rid of the responsibility of protecting them. Accordingly
an arrangement was arrived at between the British and Russian
authorities permitting such Jews, on receiving papers of dismissal from
their Russian allegiance from the Vice-Consul at Jaffa, to register at
the British Consulate as British protégés. A large number availed
themselves of the privilege. There is nothing to show that the Agreement
of 1849 was ever cancelled.[97]
In Morocco the Consular Protection System affected Jews more closely
than in Turkey. It was for many years their sole protection against the
oppressions of the Bashaws and the cruel fanaticism of the people, and
on this ground there was much to be said for its so-called abuses and
irregularities. The right of protection seems to have been derived from
a very loosely worded article of the Anglo-Moorish Treaty of 1728,
granting immunity from taxation to all the native servants of British
subjects, whether Moors or Jews.[98] This Treaty was abrogated by the
general Treaty of 1856 (Article XXXVIII) and a more definite scope was
given to British Consular jurisdiction (Article III), but in a Treaty of
Commerce signed on the same day, it was expressly stipulated (Article
IV) that native agents employed by British subjects "shall be treated
and regarded as other subjects of the Moorish dominions."[99]
Nevertheless, the old abuses continued in virtue of the "Most favoured
nation" clause,[100] and a very large number of native Jews received
protection at the hands of the Consuls of all the Powers, partly on
account of their usefulness and partly on account of the insecurity of
their lives and property under the Moorish authorities.
It was, however, difficult to restrain Moorish fanaticism, and the
Consuls were frequently called upon to protect their Jewish protégés or
to avenge outrages of which they became victims.[101]
DOCUMENTS.
* * * * *
PROTECTION OF RUSSIAN JEWS IN PALESTINE.--THE AGREEMENT OF 1849.
_Earl Russell to the Jewish Board of Deputies._
FOREIGN OFFICE,
_February 1st, 1864_.
SIR,--I am directed by Earl Russell to acknowledge the receipt of your
two letters of the 29th of December and 22nd inst., in the former of
which you enclose a Memorial to His Lordship from the Jews of Safed and
Tiberias, praying that they may again be placed under British
protection, of which they assert that they were deprived by Mr. Consul
Finn under the circumstances stated by them.
I am now to state to you in reply for the information of the
Memorialists that Her Majesty's Government have every disposition to
give effect to the arrangements which were made with the Russian Consul
General in 1849, namely to afford British protection to those Jews who,
having declined to return to Russia, have divested themselves of their
Russian Nationality, and so forfeited the protection to which _primâ
facie_ they were entitled to look. But I am to add that it must be
distinctly understood that this can only be done by the production on
the part of the individual seeking British protection of the formal
letter of Dismissal from the Russian Consulate, shewing that he has been
cast off from Russian protection, and would thus be left otherwise
unprotected. If he can produce no such letter, Her Majesty's Consular
Officers will not be entitled to grant to such individual British
protection.
Mr. Finn acted erroneously in originally supposing that British
protection could be granted to Russian Jews without the production of
formal letters of dismissal, and it was in consequence of instructions
from Her Majesty's Government that he withdrew British Consular
protection from those persons who could not produce such letters. Lord
Russell, however, is of opinion that Mr. Finn has shewn satisfactorily
that his good offices have nevertheless not unfrequently been extended
to the Jewish Communities at Safed and Tiberias, and that they have no
just reason to complain of him.
A delay has been occasioned in answering your first letter by the
necessity of communicating with Mr. Finn and of making other inquiries
with regard to the statements contained in the Memorial.
I am, Sir,
Your most obedient humble Servant,
I. HAMMOND.
J. M. MONTEFIORE, ESQ.,
4 GT. STANHOPE ST., MAYFAIR.
(Minute Books of Board of Deputies, 1864.)
ART. III. ANGLO-MOORISH TREATY _of January 14, 1727-8_.
III. That the Menial Servants of his Britannic Majesty's Subjects, the
Natives of the Country, either Moors or Jews, be exempt from Taxes of
all kinds.
("A General Collection of Treaties" (1732), iv. 458.)
* * * * *
ART. III. ANGLO-MOORISH GENERAL TREATY _of December 9, 1856_.
EXTRACT.
Article III....The British Chargé d'Affaires shall be at liberty to
choose his own interpreters and servants, either from the Mussulmans or
others, and neither his interpreters nor servants shall be compelled to
pay any capitation tax, forced contribution, or other similar or
corresponding charge. With respect to the Consuls or Vice-Consuls who
shall reside at the ports under the orders of the said Chargé
d'Affaires, they shall be at liberty to choose one interpreter, one
guard, and two servants, either from the Mussulmans or others; and
neither the interpreter, nor the guard, nor their servants, shall be
compelled to pay any capitation tax, forced contribution, or other
similar or corresponding charge. If the said Chargé d'Affaires should
appoint a subject of the Sultan of Morocco as Vice-Consul at a Moorish
port, the said Vice-Consul, and those members of his family who may
dwell within his house, shall be respected, and exempted from the
payment of any capitation tax, or other similar or corresponding charge;
but the said Vice-Consul shall not take under his protection any subject
of the Sultan of Morocco except the members of his family dwelling under
his roof.
(Bernhardt: _op. cit._, p. 556.)
* * * * *
ART. IV. ANGLO-MOORISH TREATY OF COMMERCE _of December 9, 1856_.
EXTRACT.
Article IV. The subjects of Her Britannic Majesty within the dominions
of His Majesty the Sultan shall be free to manage their own affairs
themselves, or to commit those affairs to the management of any persons
whom they may appoint as their broker, factor or agent; nor shall such
British subjects be restrained in their choice of persons to act in such
capacities; nor shall they be called upon to pay any salary or
remuneration to any person whom they shall not choose to employ; but
those persons who shall be thus employed, and who are subjects of the
Sultan of Morocco, shall be treated and regarded as other subjects of
the Moorish dominions.
(_Ibid._ p. 573.)
* * * * *
FRANCO-MOORISH "RÈGLEMENT" REGARDING PROTECTION, _August 19, 1863_.
EXTRACTS.
La protection est individuelle et temporaire.
Elle ne s'applique pas en général aux parents de l'individu protégé.
Elle ne peut s'appliquer à sa famille, c'est-à-dire à la femme et aux
enfants demeurant sous le même toit.
Elle est tout au plus viagère, jamais héréditaire, sauf la seule
exception admise en faveur de la famille Benchimol, qui, de père en
fils, a fourni et fournit des censaux interprètes au port de Tanger.
Les protégés se divisent en deux catégories:
La première catégorie comprend les indigènes employés par la Légation et
par les différentes Autorités consulaires.
La seconde catégorie se compose des facteurs, courtiers ou agents
indigènes employés par les négociants français pour leurs affaires de
commerce....
Le nombre des courtiers indigènes jouissant de la protection française
est limité à deux par maison de commerce. Par exception, les maisons de
commerce qui ont des comptoirs dans différents ports pourront avoir des
courtiers attachés à chacun de ces comptoirs et jouissant à ce titre de
la protection française....
Il est entendu, que les cultivateurs, gardiens de troupeaux ou autres
paysans indigènes au service des Français ne pourront être l'objet de
poursuites judiciaires sans que l'Autorité consulaire compétente en soit
immédiatement informée, afin que celle-ci puisse sauvegarder l'intérêt
de ses nationaux....
(De Card: "Les Traités entre la France et le Maroc" (Paris, 1898), pp.
221-22.)
* * * * *
(_c_) THE CONFERENCES OF MADRID (1800) AND ALGECIRAS (1906).
Through the efforts of the British Minister at Tangier, Sir John
Drummond Hay, who had negotiated the Treaties of 1856 and who was
strongly opposed to the abuses of the Protection system, a Conference of
the Powers and other interested States was held at Madrid in 1880 with
the object of introducing reforms.[102] A new Convention, containing a
few fresh restrictions, was agreed upon, but, as a matter of fact, the
Conference was a failure, owing to the reluctance of France to abandon a
system which gave her an advantage against Great Britain in promoting
her influence in Morocco.[103] For obvious reasons, Jewish influence
was also largely used to the same end. The Jewish factor of the problem
came out very prominently in the debates of the Conference. All the
protégés referred to by name were Jews, such as the families of
Benchimol, Moses Nahon, David Buzaglo, and Isaac Toledano.[104] One of
the few reforms carried out by the Conference was the abolition of
hereditary protection. An exception was, however, made in the case of
the Jewish family of Benchimol, whose rights in this respect had been
guaranteed in the Convention of 1863 with France, and a special
reservation to this effect was inserted in the new Treaty.[105]
The Conference also dealt with the general questions of Religious
Liberty in Morocco and of the treatment of native Jews. In 1864 Sir
Moses Montefiore, as President of the Jewish Board of Deputies and with
the support of the British Government, had undertaken a mission to
Morocco in order to secure an improvement in the treatment of the
non-Mohammedan population, and more particularly the Jews. He succeeded
in obtaining from the Sultan a remarkable Edict assuring to the Jews a
perfect equality of treatment with all the other subjects of the
Sultan.[106] This Edict had not been observed, and, at the instance of
the Pope, the Madrid Conference adopted a Declaration calling upon the
Shereefian Government to give effect to it and at the same time to
assure Religious Liberty to all its subjects. The result was to extract
from the Sultan a formal reaffirmation of the Montefiore Edict.[107]
A similar course was pursued by the Conference which met at Algeciras in
1906 to consider the Moorish question in its wider political aspects.
The intervening quarter of a century had been as barren of reforms as
the period which elapsed between the granting of the Edict of 1864 and
the meeting of the Madrid Conference. The maltreatment of the Jews had
continued, and had been the subject of frequent complaints by the
Alliance Israélite, the Anglo-Jewish Association, and the American
Jewish Committee, and of remonstrances by their respective Governments.
Accordingly at the instance of the United States Government, the
question was brought before the Algeciras Conference, and, at the
sitting of that body on April 2, 1906, a resolution was adopted, again
calling upon the Sultan of Morocco to see "that the Jews of his Empire
and all his subjects, without distinction of faith, were treated with
justice and equality."[108]
No steps, however, were taken to enforce this resolution, and it was not
even made a treaty obligation. That, however, was of little consequence,
for, very shortly after, the Moorish Empire virtually disappeared, and a
French Protectorate was proclaimed. The Jews of Morocco are now in the
same situation as their brethren in Algiers and Tunis, which, however,
is not to say that it is entirely satisfactory.
DOCUMENTS.
* * * * *
EXTRACTS FROM PROTOCOLS OF THE MADRID CONFERENCE (1880).
_Protocole No. 3.--Séance du 20 Mai, 1880._
Sur la question de la protection héréditaire, le Plénipotentiaire de
France rappelle que la Convention de 1863 accorde formellement cette
protection à la famille Benchimol. Les raisons qui ont motivé cette
exception ont été dûment appreciées à cette époque par le Gouvernement
Marocain; elles ont conservé toute leur force, et il est impossible au
Gouvernement Français d'abandonner une famille qui jouit depuis 17 ans
de la plus juste considération. Il demande le maintien de cette
exception si légitime.
Le Plénipotentiaire du Portugal, tout en maintenant dans toute son
étendue le droit au traitement de la nation la plus favorisée, reconnu
toujours au Portugal et récemment encore lors des Ambassades spéciales
envoyées par sa Majesté Chérifienne en 1875 et 1877, admet que la France
puisse alléguer des motifs spéciaux en faveur d'une exception qui, selon
lui, n'invalide pas le principe. Il accepte donc sans reserve que la
protection ne soit pas héréditaire, avec l'exception unique établi
nominativement dans la Convention de 1863. Seulement pour le cas où le
Gouvernement Marocain accorderait par la suite d'autres exceptions de
cette nature, il réserverait le droit du Gouvernement Portugais de
réclamer une exception analogue.
Pareille réserve est faite par les autres Plénipotentiaires.