Notes on the Diplomatic History of the Jewish Question Part 12

_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 cla.s.ses 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 n.o.ble 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 a.s.sured 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 a.n.a.logous 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 a.s.sured 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 cla.s.s of American citizens on account of their religious faith.

I cannot but feel a.s.sured 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 n.o.ble 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 a.s.sert 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 cla.s.ses 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 pa.s.sports 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 Amba.s.sador 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 a.s.sembled, 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.