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which he had received to quit Russia appeared to have been in accordance with Russian law. Mr. Lewisohn having further told Lord Granville that his business requirements would in a short time render it again desirable for him to visit Russia, and having asked whether protection would be afforded him for that purpose by Her Majesty's Government, Lord Granville requested Lord Dufferin, by telegraph, to ascertain whether there would be any objection to Mr. Lewisohn's returning to Russia. A delay of three weeks su pervened, and Lord Granville telegraphed again, and learned in reply that Lord Dufferin had not yet received answer from the Russian Government to several inquiries he had made on the subject. Ultimately, after a correspondence extending over four or five months, Mr. Lewisohn received (on April 2, 1881) a letter from the foreign office which informed him of the definite refusal of the Russian Governmeut to permit him to return to St. Petersburg.
Mr. Foster to Mr. Blaine.
LEGATION OF THE UNITED STATES,
St. Petersburg, July 14, 1881. (Received July 30.) SIR: I have the honor to acknowledge the receipt of your confidential No. 80, and have read with much interest your admirable note to Mr. Bartholomei which you sent as an inclosure.
You express a desire that I should transmit without delay the text of the law governing the residence or sojourn of Jews in Russia, to which Sir Charles Dilke alluded in Parliament. I regret to say that I am unable at present to do so, but I hope the abstract sent with my No. 135 will be sufficient for your purpose.
As heretofore stated, the laws are numerous and conflicting, and I do not know the precise one referred to by him; besides, they are in the Russian language only, and uncodified, and it would require the assistance of a learned native lawyer, with fuller information as to Sir Charles's reinarks, to do more than send what is contained in my No.
I will write to Mr. Lowell, who may be able to get more light upon the subject. I will not, of course, ask him to do anything if he sees the slightest embarrassment, but as the action of our government and of this legation have been freely referred to in Parliament, he may be able, without appearing to be intrusive, to get further information, which I will ask him to communicate to you direct.
I hope the memorandum on the British, Austrian, and other treaties with Russia, which I also transmit, will be of some service to you. The examination which I have made satisfies me that the text of our treaty of 1832 is more favorable to us than that of any other of the nations mentioned. It is possible that the last three lines of Article I may yield the point under discussion, but they certainly do not do so as fully and explicitly as either the British, French, or Austrian (especially the latter), or the treaties of the other European governments. I think you have been misinformed if you have the impression (as I infer you have from your note to Mr. Bartholomei) that either other nations have more favorable treaty stipulations on this subject with Russia than the United States, or that the Jews of other nationalities receive better treatment than those who are American citizens. On the contrary, so far as my observation goes, more consideration has been shown to American Jews than is usual with those of other nationalities. I think
that upon further examination of the subject you will be confirmed in the views suggested by the resolution of Congress, and approved by the President and yourself, that the defect may be in the treaty, and that we will have to look for a remedy in that direction.
The present time is not a favorable season, however, for any action, as both the embassies and court are in vacation; and, besides, you may prefer to further consider the subject before any other steps are taken.
There is a kindred matter which I design to make the topic of a dispatch, to wit, the rights of naturalized American citizens of Russian nativity who may revisit this country. The question has presented itself recently in two or three phases, and in the absence of a treaty of naturalization it is not easy to make a satisfactory settlement. I am, &c.,
JOHN W. FOSTER.
Mr. Blaine to Mr. Foster.
DEPARTMENT OF STATE,
Washington, July 29, 1881. SIR:
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 visaed 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 220 February, 1784, although 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 sball remain in the said cities by reason (f his business, or of his own pleasure, shall enjoy the free exercise of his religion according to the praireworthy 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 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 reaport, St. Petersburg, &c.
The full text of this ukase, which breathes a spirit of large and en. lightened tolerance in advance of the policy of those days, is well worthy of perusal, and may be consulted in vol. 4 of Martens "Recueil des Traités," 1st edition, Gotttingen, 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 Falix 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 ary 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 lands, may, after the established for malities, 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 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 prescrip ions 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 winistry 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 Deceinber 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 priviliges, 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 subject 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
H. Ex. 192—5
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 sub mitting to the laws and ordinances there prevailing, and particularly to the regula-tions 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 inheritauces 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 guild, subject to the approval of his application by the ministries of finance, iuterior, and foreign affairs. A personal right, not a mercantile privilege, is conferred. To bar an American citizen whose rights might be so coucerned 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 goverument 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 indi. viduals.
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 An.erican 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 beard 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 l' nited 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