Part 8

The opportunity presented itself when in the early sixties, under the influence of Cobden and Chevalier, France denounced all her Commercial Treaties. In negotiating the new Treaty with Switzerland she resolutely set her face against all discriminations, or possibilities of discrimination, between French citizens on the score of religion. The result was that she obtained in her new Treaty (June 30, 1864) a form of article without precedent in instruments of the kind.[78] In place of "National treatment," French citizens in Switzerland "without distinction of creed" were assured the same treatment as was accorded to "Christians."[79] This striking victory was speedily followed by the abolition of all Jewish disabilities throughout the Confederation.[80]

A series of more formidable cases of the same kind arose at a later period out of the disabilities imposed on Jews in Russia. The Powers mainly affected were the United States and Great Britain. Both had Treaties of Commerce with Russia, the American Treaty having been concluded in 1832 and the British in 1859. Both Treaties contained, in substantially the same form, articles guaranteeing reciprocal "National treatment" to the subjects of the High Contracting parties. There is, however, an extraordinary contrast in the interpretation of these Treaties by the British and American Governments respectively.

The question first came up for consideration in 1862. Certain British Jews resident in Warsaw complained that the disabilities imposed upon native Jews were also imposed upon them, and they appealed to Her Majesty's Government for protection. Lord John Russell held that the articles of the Treaty of 1859, by which British subjects in Russia and Russian subjects in England were to be treated on an equal footing with the nationals of those countries, did not mean that British Jews in Russia should be treated as British subjects, but that they should only have equal treatment with their oppressed co-religionists. He accordingly declined to seek any relief for the petitioners.[81] The case gave rise to no controversy, not only because the British and Russian Governments were at one in their interpretation of the Treaty, but because the facts were not made public at the time. It proved, however, a fatal and humiliating precedent. In 1880 a terrible era of persecution was inaugurated for the Jews of Russia, and it soon reacted on their foreign brethren visiting the country. Towards the end of the year a naturalised British Jew named Lewisohn was expelled from St. Petersburg because he was a Jew, and he invoked the protection of his Government. Lord Granville, who was then Foreign Secretary, was at first disposed to regard the expulsion as a violation of the Treaty,[82] but later on he became acquainted with the precedent of 1862, and he declined to depart from it.[83] In 1890, at the instance of the Jewish Conjoint Committee, Lord Salisbury submitted the question to the Law Officers of the Crown, with the result that the precedent set by Lord John Russell was confirmed on its merits and not--as in the case of Lord Granville--_quâ_ precedent only.[84] The last occasion on which an effort was made to obtain a reversal of this decision was in 1912. The Conjoint Committee addressed to the Secretary of State, Sir Edward Grey, an elaborate Memorandum reviewing the history and legal aspects of the question.[85] The reply was in effect a reaffirmation of the previous decisions, but the grounds on which it was rested were different. Sir Edward Grey did not discuss the reasonableness of the established interpretation, but he pleaded that any departure from it would only lead to the termination of the Treaty, and that this would serve neither British nor Jewish interests.[86]

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.

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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.)

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_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.)

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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.)

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_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.)

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_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.)

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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.)

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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.)

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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.)

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_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.)

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_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.)

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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.)

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_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.