Mr. Breckinridge to
Mr. Olney.
Legation of the United States,
St. Petersburg, July 24, 1895.
(Received Aug. 13.)
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.,
[Inclosure 1 in No.
116.]
Mr. Breckinridge
to Baron Osten-Sacken.
Legation of the United States,
St. Petersburg, June 25, 1895.
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.,
[Inclosure 2 in No.
116.—Translation.]
Prince Lobanow to
Mr. Breckinridge.
St.
Petersburg, June 26/July 8,
1895.
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.,
[Page 1066]
[Inclosure 3 in No.
116.]
Mr. Breckinridge
to Prince Lobanow.
Legation of the United States,
St. Petersburg, July 8/20, 1895.
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.,