Part 9

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_.

Article I. There shall be between all the dominions and possessions of 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.)

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ART. IV. ANGLO-MOORISH TREATY OF COMMERCE _of December 9, 1856_.

EXTRACT.