Part 9

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.)

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_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.)

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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.)

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* * * * *

(_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.

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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.)

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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.

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.)

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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.)

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(_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.

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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.

"La protection n'est point héréditaire. Une seule exception est maintenue en faveur de la famille Benchimol, comme étant établie dans la Convention de 1863; mais elle ne saurait créer un précédent. Cependant si le Souverain du Maroc accordait une autre exception, toutes les Puissances représentées à la Conférence auraient le droit de réclamer une exception pareille."

* * * * *

_Protocole No. 11.--Séance du 24 Juin, 1880._

Le Plénipotentiaire d'Italie demande la parole, et s'exprime en ces termes:--

"...L'Italie a toujours maintenu inaltérable son droit consuétudinaire sans jamais en abuser. En effet, en examinant le chiffre de 108, auquel montent ses protégés, on trouvera que 11 seulement sont protégés en vertu du droit consuétudinaire.

"Six sont d'anciens Vice-Consuls et interprètes des États Italiens composant actuellement le Royaume d'Italie. Le nombre de ceux qui ont rendu ainsi des services à l'Italie est de six et non d'un seul (M. Moses Nahon), comme M. le Ministre des Affaires Etrangères du Maroc avait cru pouvoir l'affirmer dans la séance du 19 Juillet, 1879, des Conférences de Tanger.

"La veuve David Buzaglo et ses deux fils composent la famille d'un Agent Diplomatique Italien, et jouisse à ce titre de la protection.

"La veuve Isaac Toldano et 8 autres personnes appartiennent à la famille de Joseph Toldano, Interprète de la Légation d'Italie, famille qui jusqu'à présent a joui de la protection héréditaire comme la famille Benchimol, protégée par la France."

("Brit. and For. State Papers," lxxi. 825-826, 872, 873-874.)

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ART. VI. TREATY OF MADRID, _July 6, 1880_.[109]

VI. La protection s'étend sur la famille du protégé. Sa demeure est respectée.

Il est entendu que la famille ne se compose que de la femme, des enfants, et des parents mineurs qui habitent sous le même toit.

La protection n'est pas héréditaire. Une seule exception, déjà établie par la Convention de 1863, et qui ne saurait créer un précédent, est maintenue en faveur de la famille Benchimol.

Cependant, si le Sultan du Maroc accordait une autre exception, chacune des Puissances Contractantes aurait le droit de réclamer une concession semblable.

(_Ibid._, pp. 641-642.)

* * * * *

THE MONTEFIORE EDICT, 1864.

In the Name of God, the Merciful and Gracious. There is no power but in God, the High and Mighty.

Be it known by this our Royal Edict--may God exalt and bless its purport and elevate the same to the high heavens, as he does the sun and moon!--that it is our command, that all Jews residing within our dominions, be the condition in which the Almighty God has placed them whatever it may, shall be treated by our Governors, Administrators, and all other subjects, in manner conformable with the evenly balanced scales of Justice, and that in the administration of the Courts of Law they (the Jews) shall occupy a position of perfect equality with all other people; so that not even a fractional portion of the smallest imaginable particle of injustice shall reach any of them, nor shall they be subjected to anything of an objectionable nature. Neither they (the Authorities) nor any one else shall do them (the Jews) wrong, whether to their persons or to their property. Nor shall any tradesman among them, or artizan, be compelled to work against his will. The work of everyone shall be duly recompensed, for injustice here is injustice in Heaven, and we cannot countenance it in any matter affecting either their (the Jews') rights or the rights of others, our own dignity being itself opposed to such a course. All persons in our regard have an equal claim to justice; and if any person should wrong or injure one of them (the Jews), we will, with the help of God, punish him.

The commands hereinbefore set forth had been given and made known before now; but we repeat them, and add force to them, in order that they may be more clearly understood, and more strictly carried into effect, as well as serve for a warning to such as may be evilly disposed towards them (the Jews), and that the Jews shall thus enjoy for the future more security than heretofore, whilst the fear to injure them shall be greatly increased.