Part 8

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_.

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.