Mr. Breckinridge to Mr. Olney.

No. 116.]

Sir: Referring to Mr. Peirce’s No. 91, of June 13, 1895, relating to the distinction made by the Russian consul at New York against Hebrew citizens of the United States, in viséing passports issued by our Government, I now have to submit the case to you for further instructions.

In this connection I inclose herewith copy and translation of Prince Lobanow’s note of July 8 in reply to my note of May 17, presenting the matter to the Russian Government. Copy of my first note was sent to the Department with the legation’s No. 71, of May 17.

In the present inclosure referred to, Prince Lobanow states the case from the Russian standpoint quite fully and with great kindness and [Page 1062] moderation of spirit; and lie expresses the hope that his explanation will prove satisfactory to the United States.

I inclose also copy of my reply to the above note. In my reply I express no opinion, of course, as to the sufficiency of Prince Lobanow’s response, but confine myself to a statement of the case as it appears to me to be presented at the present time, state that I submit the matter to my Government, reciprocate the kind sentiments expressed, and ask for a copy of the law and regulations requiring consuls to make this distinction, in order that I may forward them also in connection with the case. This request was prompted by the fact that while Prince Lobanow makes the interesting declaration that the Russian practice is not because of religious faith, yet he does not say what else it is. I will transmit these papers as soon as they can be obtained.

In addition to the foregoing correspondence, I have conferred quite fully with both Prince Lobanow and Baron Osten-Sacken, the latter having special charge of Hebrew matters. These conferences further revealed the difficulty that even the most enlightened Russians have in realizing the nature of our institutions and in separating a question of extraterritoriality from questions internal to themselves. I am happy to say, however, that both of these gentlemen discussed the matter in a spirit of the utmost good will and consideration for the United States, and I am sure that they fully reciprocate our desire to settle this matter in a way alike honorable and considerate to both countries.

In discussing the relative gravity and importance of the issue, Baron Osten-Sacken asked me to give him the language of our organic law in regard to religious liberty. I tried to make our position in this regard plain to him in my note of June 25, copy of which is inclosed. It may not be improper to add that of course this does not pretend to represent any language or instruction from the Department upon this point, but it is simply a statement of my own belief as expressed in the scope of conversational discussion. Baron Osten-Sacken laid some stress upon the customary latitude which he claims is granted to consuls by other nations in viséing passports, saying that even Great Britain does not object to the practice of which we complain. I replied that I had no information upon that point, and consequently could say nothing about it; that doubtless, if he was correct, there was some sufficient reason for it in the institutions of Great Britain, but that with us the case was certainly different; that our course would be the same with any nation, and that in such a matter I did not see how we could accept the practice of other powers as a guide for ourselves.

At this point I will remark that Mr. Adee’s No. 92, of July 3, relating to the subject of this dispatch, the receipt of which I now acknowledge, alluded to the limitations upon consuls, and instanced our receding from certain requirements upon the objection of the British Government that the administration of an oath by a foreign consul to a subject of the country is an invasion of the judicial independence thereof.”

As this dispatch was received, however, after the receipt of Prince Lobanow’s present note, I have not used this interesting point, the stage having been reached for submitting the whole business to the Department, to be passed upon in the connection in which that argument would apply.

The first and chief difficulty so far experienced has been to get the Russian Government to consider this question separately and simply as it is presented by the United States, apart from any collateral question.

As the record shows, former discussion has largely involved the [Page 1063] general Jewish question, particularly as presented by the internal policy of Russia. So long as an ulterior purpose of this character is in any degree suspected, the Russian Government will consider that to be the real issue it has to meet, and it will politely but consistently refuse to amend its ways.

The next difficulty has been to secure a due apprehension of the real nature and importance of the matter, even after it has been separately considered. It is quite difficult for Russians to consider it as more than an administrative regulation pitted against their regulations, changeable at the will of some high official, and meant only to serve purposes of convenience.

I have politely but consistently refused to enter into any discussion in this connection except upon the precise proposition submitted by the Department, and I have iterated and reiterated that proposition, to the exclusion of all others, as clearly and as pointedly as I could.

In case Prince Lobanow’s statement is not deemed a sufficient answer to the demands of the United States, I think a reply to that effect will find the Russian Government ready, in good faith, to seek some other adjustment. This may be on instruction to their consuls in the United States to visé all passports issued by the Department, or it may be a proposition to instruct them to visé none. I have discussed both of these propositions with Baron Osten-Sacken, urging the safety to Russia, in dealing with our class of Hebrews, of the former course, and expressing the hope that the latter proposal would not be deemed necessary.

In the foregoing I have tried to put you in possession of every phase of this matter as it now stands, and I respectfully request your further instruction at your convenience.

I have, etc.,

Clifton R. Breckinridge.
[Inclosure 1 in No. 116.]

Mr. Breckinridge to Baron Osten-Sacken.

Your Excellency: Referring to our recent conversation upon the subject of the exercise of consular or foreign jurisdiction within the limits of the United States upon matters respecting a religious establishment or belief, I now comply with your request for a statement of the language of our Constitution with reference to the power of the United States Government itself to there exercise such jurisdiction.

I will just call your attention to the peculiar character of our constitutional requirements.

The States existed separately and independently before the General Government existed. They created the General Government. It is true that many new States have been admitted into the Union since the original States created the Government, but this has been out of territory originally ceded to the General Government by the States— land which, at that time, lay beyond the settled zone—or out of land since acquired by the General Government by purchase or conquest, and in a way originally provided for.

So when the States created the General Government they “granted” and “delegated” certain powers to it, as enumerated in the Constitution, and they retained all the other powers themselves. Our Government [Page 1064] has very great powers. It is supreme within the limits of those powers; but the point is, that it can lawfully do nothing unless the power to do so has been granted to it.

It is a very serious matter to us, then, when our Government is desired to conform to a policy, if the power to do so has not been “delegated” to it. It can not assume the power, or get it in any way except by a change of the Constitution, granting the Government that power.

The very great difficulty of effecting a change in the Constitution will be readily seen when it is stated that it takes two thirds of both branches of Congress, or two-thirds of the States, to propose an amendment; and after it is proposed, it requires a majority vote in three-fourths of the States to adopt it. Such is the difficulty that no changes have been made except at two periods of our history. The first was the period just after the formation of our Government, ending in 1804. Then there was no change until 1865, at the close of the civil war, when certain changes were made as the result of that great war.

Although Article IX of the amendments of 1790 says, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” and Article X of the same group of amendments says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people,” yet in the face of all this, although Congress had not been granted any power in regard to religious matters, so great was the fear of the States and the people that Congress might upon some pretext attempt such legislation that the first of all the amendments, Article I, says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

Thus, you see, my Government is prohibited in the most positive manner possible by the very law of its existence from even attempting to put any form of limitation upon any of its citizens by reason of his religious belief. How, then, can we permit this to be done by others? To say that they can thereby be discriminated against by foreign governments, and are only safeguarded against their own, would be a remarkable position for us to occupy.

Fortunately we approach this matter in that spirit of friendship and reciprocal consideration and respect which has always marked the intercourse of our countries, and I am happy to say that it grows with time. I need not say that it will afford me the greatest pleasure to respond to any further requests with which I may be honored; and I do not doubt for a moment that upon full consideration an adjustment will be found alike consistent, honorable, and fully satisfactory to both of our Governments.

I avail, etc.,

Clifton R. Breckinridge.
[Inclosure 2 in No. 116.—Translation.]

Prince Lobanow to Mr. Breckinridge.

Mr. Minister: I have not failed to devote the most serious attention to the contents of the note which you have had the goodness to address to me, under date of May 5/17 last, on the subject of the difficulties which the visé of passports, by the Russian consulate-general at New York, of people of Jewish faith under American jurisdiction encounters.

[Page 1065]

You are good enough to express the opinion that the refusal interposed by the Russian consular authority to the request for a visé, is contrary to the American Constitution, which does not allow that a citizen of the United States should be deprived of his rights by reason of the faith he professes. I desire first and foremost to make this distinction, that the refusal to visé, which has been given in certain cases by our consular authorities, is in no wise founded on objections properly religious. Indeed, if it was at all the fact of belonging to the Jewish religion which was an obstacle for certain foreigners to be admitted into Russia, the law would extend this interdiction to all the members of that religion.

Now, on the contrary, it recognizes formally the right of whole categories of Israelites to enter Russia, and the selection which it has made of these very categories proves that it has been guided in this question solely by considerations of an internal administrative character, which has nothing in common with a religious point of view.

It is not necessary to say to you, Mr. Minister, that the broadest spirit of toleration for all cults forms the very basis of Russian laws; the Jewish religion is no more prohibited in Russia than in the United States; it is even legally recognized here and enjoys here certain privileges.

But when, for motives of internal order, Russian law raises obstacles to the entrance of certain categories of foreigners upon our territory, the Russian consuls, who can neither be ignorant of nor overlook the law, are in the necessity of refusing the visé to persons who they know belong in these categories.

I will add even that in forewarning on the spot the persons who address themselves to them to obtain visés, they save them difficulties and dangers which they would encounter later if they had not been advised.

It is a question, moreover, of a general legislative measure, which applies to certain categories of Israelites of all countries whatsoever.

As to the American Constitution, I must confess that it seems to me to be here beside the question. The article of the Constitution which you are good enough to mention, and which prescribes that no religion is prohibited in the United States, is by the very nature of things, placed outside of all prejudice by the consular authority. He has neither to prohibit nor authorize the exercise in America of any cult; and the fact of his visé being accorded or refused does not encroach upon the article in question. The refusal of the visé is not at all an attack upon any established religion; it is the consequence of a foreign law of an administrative character, which only has its effect outside of the territory of the Union.

I enjoy the hope, Mr. Minister, that the preceding considerations will be accepted by your Government in the spirit which inspires them, and that the just respect which is held in the United States for the precepts of the laws will make it understood that the Russian consular authorities have acted in this matter as they have from necessity. The frank and complete exposition which I have the honor to make of our point of view in this question appears to me to accord the better with the relations of close friendship which exist between the two Governments and the two countries—relations to which in your note, Mr. Minister, you pay a respect so merited, and to which we also, for our part, attach the highest value.

Receive, Mr. Minister, etc.,

Lobanow.
[Page 1066]
[Inclosure 3 in No. 116.]

Mr. Breckinridge to Prince Lobanow.

Your Excellency: I have the honor to acknowledge the receipt of your note of June 26/July 8 in regard to the distinction made by the Russian consul at Few York, in viséing passports, against Hebrew citizens of the United States.

As your excellency is aware, this practice of making such distinctions within the jurisdiction of the United States has long been considered by my Government as an exercise of authority within our country in plain violation of our institutions and laws, and that as such it has been the subject of respectful but most earnest protests.

The basis of this distinction has always been considered by my Government to be the religious faith of this class of our citizens, and in this form it has been presented and considered.

In your excellency’s present note you state that this distinction is in no wise founded on objections of a religious character; that certain classes of Jews are permitted to enter the Empire; that it is for purposes of internal order that Russian law places obstacles to the entrance of certain categories of foreigners; that Russian consuls can not overlook the law; that its administration upon the spot saves the applicant greater difficulties at a subsequent period; that the question is one of general legislation, applicable to certain categories of Israelites of all countries; that the article of our Constitution relating to religious liberty does not seem to apply to the case; that the Russian consul does not authorize or prohibit the exercise of any religion in America; and that the refusal of a visé does not militate against any established religion, it being the consequence of a foreign law of an administrative character, which has no effect except outside of the territory of the Union.

Your excellency further has the goodness to express the hope that the considerations stated will be acceptable to my Government, citing the foregoing as a full statement of the point of view of the Imperial Government, and accompanying the whole with friendly sentiments, thoroughly reciprocal of our own, and which I beg to assure you is the spirit in which my Government sincerely desires to consider these and all differences with the Imperial Government.

I have thus attempted to recite particularly and accurately the points in your excellency’s note, for in this difference, so radical, springing from institutions so different, and embarrassed somewhat by differences of speech, I have realized the obstacles to a complete mutual understanding of the issue.

I transmit your excellency’s note to my Government.

In this note, therefore, I do not attempt to reply to your note as a response to the position and protests of my Government; but I have confined myself to a statement of the case as it presents itself to me at this time, that any obscurities, if they exist, may be cleared away; and I wish further to respectfully call attention to a seeming misconception of my note of June 13/25, which followed my note of May 5/17, submitting this case.

This latter note was written in compliance with a request, which I had the honor to receive from Baron Osten-Sacken to state and explain the language of our organic (constitutional) law upon the subject of legislation [Page 1067] by the United States affecting the free exercise of religions belief.

Our Constitution does not say that Congress shall not make a law simply “prohibiting” or “authorizing” a religious exercise or belief, as your excellency seems to understand.

It says that “Congress shall make no law respecting an establishment of religion, nor prohibiting the free exercise thereof.” Certainly if a law deprives any people or person of a certain faith, because of that faith, of all or of any part of the rights, privileges, and immunities enjoyed by any other citizen or class of citizens, it is made “respecting” that religion, and it militates against “the free exercise thereof” as much so as if the sect had been mentioned in the title of the act and the consequences had been named as pains and penalties for the conscientious belief and observances entertained and practiced.

This is the opinion I tried to make perfectly clear, but your excellency now states that religion is not the basis of the distinction made in our country against certain classes of our citizens.

That the case may be fully submitted to my Government, I will, in conclusion, ask your excellency to kindly have me supplied with a copy of the law and regulations relating to this distinction, for, while the supposed basis is disavowed, the actual basis is not stated.

I avail myself, etc.,

Clifton R. Breckinridge.