to Mr. Foster.
Washington, July 29, 1881.
* * * * * * *
From a careful examination of the cases of grievance heretofore reported by your legation, it appears that the action of the Russian authorities toward American citizens, alleged to be Israelites, and visiting Russia, has been of two kinds:
- First. Absolute prohibition of residence in St. Petersburg and in other cities of the Empire, on the ground that the Russian law permits no native Jews to reside there, and that the treaty between Russia and the United States gives to our citizens in Russian jurisdiction no other rights or privileges than those accorded to native Russians. The case of Henry Pinkos may be taken as a type of this class.
- Second. Permission of residence and commerce, conditionally on belonging to the first guild of Russian merchants and taking out a license. The case of Rosenstrauss is in point.
The apparent contradiction between these two classes of actions becomes more and more evident as the question is traced backward. The Department has rarely had presented to it any subject of inquiry in which a connected understanding of the facts has proved more difficult. For every allegation, on the one hand, that native laws, in force at the time the treaty of 1832 was signed prohibited or limited the sojourn of foreign Jews in the cities of Russia, I find, on the other hand, specific invitation to alien Hebrews of good repute to domicile themselves in Russia, to pursue their business calling under appropriate license, to establish factories there, and to purchase or lease real estate. Moreover, going back beyond 1832, the date of our treaty, I observe that the imperial ukases concerning the admission of foreigners into Russia are silent on all questions of faith; proper passports, duly viséd being the essential requisite. And, further back still, in the time of the Empress Catherine, I discover explicit tolerance of all foreign religions laid down as a fundamental policy of the empire.
Before examining the issues directly before us, it may not be out of place to give a brief review of these historical data.
The ukase of the Empress Catherine, of 22d February, 1784, although [Page 1031] concerning only the establishment of commercial relations with the new possessions of Russia on the Black Sea, contains the following notable declaration:
That Sebastopol, Kharson, and Theodocia be opened to all the nations friendly to our empire for the advantage of their commerce with our faithful subjects, * * * that the said nations may come to these cities in all safety and freedom. * * * Each individual of such nation, whoever he may be, as long as he shall remain in the said cities by reason of his business, or of his own pleasure, shall enjoy the free exercise of his religion according to the praiseworthy precepts handed down to us by the sovereigns our predecessors, and which we have again received and confirmed, “that all the various nationalities established in Russia shall praise God, the All Powerful, each one after the worship and religion of his own ancestors,” * * * and we promise, upon our imperial word, to accord to all foreigners in these three cities the same advantages which they already enjoy in our capital and seaport, St. Petersburg, &c.
The fall text of this ukase, which breathes a spirit of large and enlightened tolerance in advance of the policy of those days, is well worthy of perusal, and may be consulted in vol. 4 of Martens’ “Recent des Traités,” 1st edition, Gottingen, 1795, pages 455–457.
The imperial ordinance of the Czar Alexander I, of 13th August, 1807, decrees a rigid system of passports for foreigners entering Russia, and is applicable to all foreigners, of whatsoever nationality,” but intimates no restriction on travel or sojourn in Russia by reason of race or faith. This ordinance was modified and amplified by the ukase of 25th February, 1817, but still without any manner of religious proscription or restriction.
From this time down to 1860 I can find no trace of the enforcement, especially against American citizens, of the restrictions against Jewish travel and residence which are stated to have existed when our treaty with Russia was signed. It is a significant circumstance that the acknowledged authorities on private international law, writing during this period upon the legislation of all Europe as affecting the persons and rights of aliens, make no reference to such disabilities. Even the painstaking Fœlix is silent on this point, although devoting much space to the treatment and rights of aliens in Russia. I do not desire to be here understood as arguing that the asserted disabilities did not exist at that time. The domestic history of the Russian Empire shows plainly the restrictions placed upon native Hebrews, and especially those of Polish origin, the efforts to confine them to certain parts of the empire, and the penalties sought to be imposed to deter them from mingling with the Christian subjects of the Czar. But the same history shows the gradual relaxation of those measures, until, in the capital itself, the native Israelite population is said to number some thirty thousand souls, with their synagogues and sectarian schools; while a special ukase of the late Czar distinctly recognizes to foreign Hebrews every privilege of residence and trade, in a certain guild, which native Christian subjects possess.
This ukase of the Emperor Alexander II, of 7th of June, 1860, after premising that the need of commercial development and the principles of international reciprocity make it proper to concede “to foreigners dwelling in Russia the same rights as those which our subjects enjoy already in the principal countries of Europe,” proceeds to permit all aliens to enter any of the trading guilds on the same footing as natives and to thereupon enjoy all the commercial privileges which these guilds confer upon native Russian traders, with the following qualification;
First remark.—Foreign Hebrew subjects, known by reason of their social position and the wide extent of their commercial operations, who come from foreign lauds, may, after the established formalities, that is to say, upon a special authorization, issued in each case by the ministers of finances, of the interior, and of foreign affairs, trade in [Page 1032] the empire and establish banking houses therein, upon procuring the license of a merchant of the first guild. It is likewise permitted to these same Israelites to establish factories, to acquire and to lease real estate conformably to the prescriptions of the present ukase.
This provision, it will be observed, extends to the whole territory of the empire. If, as I understand the response of the Russian ministry in the case of Henry Pinkos, native Israelites are forbidden by law from residing or trading in the capital, then this ukase places all foreign Jews (whether belonging to treaty powers or not) on a more favored footing. But if native Hebrews, as a fact, are permitted to reside in St. Petersburg and engage in trade in other guilds than the so-called “first guild,” there may then well be question whether such restriction to a particular guild in the case of an American Israelite is consonant with the express provisions of the treaty of 1832, Article I. This point was, in fact, raised in the case of Theodore Rosenstrauss at Kharkoff, which is narrated at length, with all the correspondence therein exchanged, in Mr. Jewell’s dispatch No 20, of December 15, 1873; but it does not seem to have been then exhaustively considered whether the complainant received, under the treaty, the like treatment with the native Hebrews of Kharkoff, or whether he was constrained to obey the ukase of 1860, which, as I have above remarked, is framed for general application to all aliens and irrespective of treaty rights. It is, however, not my present purpose to reargue this old case, but simply to call attention to the fact that Russian law may, and possibly does, modify and restrict treaty rights. The Rosenstrauss case was special in its nature, and concerned commercial privileges, under a promulgated license law of the empire. It may be necessary, at some future time, to discuss the questions it involves, but just now I am concerned with a different class of cases, namely, those of American citizens visiting Russia for private business or for pleasure and travel, and duly provided with the passports of this government authenticating their national character and their consequent right to all the specific guarantees of our treaty.
This brings me again to the cases of Pinkos and Wilczynski. It is unnecessary here to recapitulate the facts therein, as they are amply presented by the files of your legation, and by the correspondence had with the Russian foreign office. It is sufficient to characterize them as instances of the notified expulsion from St. Petersburg, by the police or military authorities, of American citizens, not because of any alleged failure to comply with the ukase of 1860, or with the Russian commercial code, but simply on the allegation, unsupported by proof, that they professed the Israelitish faith, and that the law forbade the sojourn of native Israelites in the imperial capital. On this brief formulation of the case, this government believes that, under its treaty with Russia, and in view of its treatment of Russian subjects resorting under like circumstances to the United States, it has just ground for complaint, and expectancy of better treatment from the government of Russia.
The provision of our treaty of 1832 with Russia, governing the commercial privileges of the citizens and subjects of the two countries, is as follows:
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 their submitting to the laws and ordinances there prevailing, and particularly to the regulations in force concerning commerce.
Article X confers specific personal rights reciprocally. In respect of this article an infringement alike of the letter and the spirit of the treaty is not only possible, but probable, under the rigid interpretation of the Jewish laws upon which Russia seems disposed to insist. Its stipulations concern the right to dispose of personal property in Russia owned by or falling to American citizens, who may receive and dispose of inheritances and have recourse to the courts in settlement of questions arising thereunder. It certainly could not be seriously claimed or justly’ admitted that an American Hebrew, coming within the provisions of this article, is to be treated as a candidate for commercial privileges, and required to take out a license as a trader of the first guilds subject to the approval of his application by the ministries of finance, interior, and foreign affairs. A personal right, not a mercantile privilege, is conferred. To bar an American citizen whose rights might be so concerned from personal appearance in protection of those rights would be a distinct departure from the engagement of the treaty; while to suppose that his case might come under the discretional authority of the police or the military power, which might refuse his personal sojourn in any part of the empire, or allow it under conditions depending on their good will, is to suppose a submission of the guarantees of the treaty to a tribunal never contemplated by its framers.
Upon a case arising, this government would hold that the treaty conferred specific rights on all American citizens in the matter of the disposition of their personal property, irrespective of any conditions save those which the article itself expressly creates; that their actual presence when necessary to protect or assert their interests is absolutely guaranteed whenever and for whatever time it may be needful; and that this international engagement supersedes any municipal rule or regulation which might interfere with the free action of such individuals.
It would be, in the judgment of this government, absolutely inadmissible that a domestic law restraining native Hebrews from residence in certain parts of the empire might operate to hinder an American citizen, whether alleged or known to profess the Hebrew faith, from disposing of his property or taking possession thereof for himself (subject only to the laws of alien inheritance) or being heard in person by the courts which, under Russian law, may be called upon to decide matters to which he is necessarily a party. 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 operation 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 of 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 [Page 1034] 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 simple adherence to the faith of their fathers.
That the two American citizens whose unfortunate cases have brought about this discussion were not definitely expelled from St. Petersburg, but were allotted, by the military authorities, a brief time to arrange their private affairs, said to coincide with the usual time during which any foreigner may remain in the empire under his original passport, does not alter the matter as it appears to our eyes. The motive alleged remains the same, and the principle involved is one recognized neither by our fundamental laws nor by any of the conventions we have concluded with foreign states.
It must not be forgotten that this issue, of the banishment of our citizens from a friendly territory by reason of their alleged religion, is a new one in our international relations. From the time when the treaty of 1832 was signed down to within a very recent period, there had been nothing in our relations with Russia to lead to the supposition that our flag did not carry with it equal protection to every American within the dominions of the empire. Even in questions of citizenship affecting the interests of naturalized citizens of Russian origin, the good disposition of the imperial government has been on several occasions shown in a most exemplary manner; and I am sure the actual counselors of His Majesty cannot but contemplate with satisfaction the near approach made in 1874 to the arrangement of negotiations for a treaty of naturalization between the two countries. On that occasion, as will be seen by consulting Mr. Jewell’s No. 62, of April 22, 1874, the only remaining obstacle lay in the statutes of the empire touching the conferment and loss of citizenship, of which the examining commission and the consultative council of state recommended the modification in a sense compatible with the modern usage of nations.
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 free-thinking 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 [Page 1035] 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 today an offer of protection and assured right of domicile made to the Israelites of every race.
I leave out of consideration in the present instruction the question whether the citizens or subjects of other nations are more or less favored than our own in this regard. I have not, however, failed to notice the statement made to you by Mr. de Giers, in one of your reported conversations with him, that German and Austrian Jews are subjected to the proscriptions in question, and the implication therefrom that if the Governments of Germany and Austria do not complain, there is no reason why we should.
It is not for me to examine or conjecture the reciprocal motives of policy or of international convention which may govern in these instances. Neither have I failed to remark the seeming uncertainty with which the British Government has approached the case of the English Israelite, Mr. Lewisohn, who was recently required to quit St. Petersburg, notwithstanding that the personal guarantees of the Anglo-Russian treaty of January 12, 1859, in its eleventh, twelfth, and thirteenth articles, are more particular than in our own treaty, and were, presumably, like our own stipulations, framed with the intent of securing impartial rights and protection in Russia. I am perfectly willing to rest my argument on the moral weight of our treaty of 1832, although of course not averse to availing myself of any support which may come from any other quarter to fortify what we conceive to have been our clear purpose in executing that instrument. And under no circumstances would I in the name of this government be willing to accept a less measure of impartial privilege for a citizen of the United States visiting or sojourning in Russian territory than is assured to aliens in the like case by any stipulation with or usage toward any other nation on the part of Russia.
I had the honor in my letter of the 20th ultimo to Mr. Bartholomei 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 and concluding the treaty of December 18, 1832, and the distinct and enlightened reciprocal engagements then entered into with the Government of Russia, give us a 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 stipulations 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 [Page 1036] receive in the United States, it is simply due to the good relations of the two countries that these stipulations should be made sufficient in these regards; and that 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 for 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 secured 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 statesman-like declaration of the principle of reciprocity found in the later 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.
I am, &c.,