For many years, curiously enough, the chief offender was the democratic Swiss Confederation, the Federal constitution of which was exclusively Christian, while the Cantonal legislation was in many cases frankly and even aggressively anti-Semitic. Until 1827 the Swiss Commercial Treaties contained no hint of religious differentiation, but in that year, availing themselves of the reactionary and clerical sympathies of the government of Charles X, the Federal Authorities negotiated a Treaty with France containing a "National treatment" clause, under which the powers of the separate Cantons to deal as they pleased with Jews were, in effect, reserved. But this was not all. Lest the clause should be misinterpreted, the French Minister at Berne was authorised to address a secret Note to the President of the Swiss Diet acknowledging that it implied the desired restriction, on "the Jewish subjects of the King."[67] The transaction was obviously one which could not stand the light of the Revolution of 1830, and when three years later the Government of the Canton of Basle applied the Treaty in all its rigour to French Jews, the Duc de Broglie, then French Minister for Foreign Affairs, issued an Ordinance suspending the operation of the Treaty in regard to the offending Canton, and followed this up by severing diplomatic relations and by placing a military cordon on the frontier.[68] The King himself approved the action of his Minister in an energetic speech to a deputation of the Consistoire Israélite. However, in 1835 the Ordinance was withdrawn, and until 1850 the peace was more or less preserved by a tacit modus vivendi.
The resistance of France was rendered difficult, partly by perplexities of general politics, but more immediately by the fact that the question was a larger one than it had at first appeared. In February 1840 a French Jew had been refused a permis de séjour by the police of Dresden on the ground that Jews were not permitted to reside in the city. The case was precisely similar to that of Switzerland, and M. Guizot, who was then Foreign Minister, hesitated to take up a strong attitude as he was afraid that the precedent might involve him in complications with other countries.[69] Nevertheless, French public opinion was aroused, and the Chamber, after a lively debate, called upon the Government to make suitable representations to Saxony.[70] In 1850 a Commercial Treaty between the United States and Switzerland was signed at Berne, but the American Senate, on the advice of the President, refused to ratify it because it discriminated against non-Christians.[71] This was followed almost immediately by a revival of the anti-Semitic activity of the Basle police, chiefly at the expense of French Jews resident in the Canton. The French Government again protested energetically and insisted on the withdrawal of the police measures. The demand was sulkily complied with, the Cantonal Government reserving what they called "the principle."[72]
In 1855 a new phase of the conflict was opened by the negotiation of two further Commercial Treaties with Switzerland—one by Great Britain and the other by the United States—in both of which the invidious reservations, substantially as in the French Treaty of 1827, were retained.[73] Some mystery attaches to the circumstances in which these treaties were signed and ratified,[74] but the probable explanation is that the Swiss negotiators promised in effect that there should be no discrimination. This conjecture is confirmed by the action of the Federal Assembly in the following year, in proposing a modification of the Constitution by which equal rights should be accorded to the Jews in all the Cantons. Unfortunately not all the Cantons agreed,[75] and in 1857 American public opinion became much excited at the discovery that in the Canton of Neufchatel American citizens of the Jewish faith could not be protected by American passports.[76] From this time until 1861 the United States took the place of France as the champion of Religious Liberty in Switzerland, and was strongly supported by Great Britain.[77] Her efforts, however, were not successful, and it was still reserved for France to settle the question.
The opportunity presented itself when in the early sixties, under the influence of Cobden and Chevalier, France denounced all her Commercial Treaties. In negotiating the new Treaty with Switzerland she resolutely set her face against all discriminations, or possibilities of discrimination, between French citizens on the score of religion. The result was that she obtained in her new Treaty (June 30, 1864) a form of article without precedent in instruments of the kind.[78] In place of "National treatment," French citizens in Switzerland "without distinction of creed" were assured the same treatment as was accorded to "Christians."[79] This striking victory was speedily followed by the abolition of all Jewish disabilities throughout the Confederation.[80]
A series of more formidable cases of the same kind arose at a later period out of the disabilities imposed on Jews in Russia. The Powers mainly affected were the United States and Great Britain. Both had Treaties of Commerce with Russia, the American Treaty having been concluded in 1832 and the British in 1859. Both Treaties contained, in substantially the same form, articles guaranteeing reciprocal "National treatment" to the subjects of the High Contracting parties. There is, however, an extraordinary contrast in the interpretation of these Treaties by the British and American Governments respectively.
The question first came up for consideration in 1862. Certain British Jews resident in Warsaw complained that the disabilities imposed upon native Jews were also imposed upon them, and they appealed to Her Majesty's Government for protection. Lord John Russell held that the articles of the Treaty of 1859, by which British subjects in Russia and Russian subjects in England were to be treated on an equal footing with the nationals of those countries, did not mean that British Jews in Russia should be treated as British subjects, but that they should only have equal treatment with their oppressed co-religionists. He accordingly declined to seek any relief for the petitioners.[81] The case gave rise to no controversy, not only because the British and Russian Governments were at one in their interpretation of the Treaty, but because the facts were not made public at the time. It proved, however, a fatal and humiliating precedent. In 1880 a terrible era of persecution was inaugurated for the Jews of Russia, and it soon reacted on their foreign brethren visiting the country. Towards the end of the year a naturalised British Jew named Lewisohn was expelled from St. Petersburg because he was a Jew, and he invoked the protection of his Government. Lord Granville, who was then Foreign Secretary, was at first disposed to regard the expulsion as a violation of the Treaty,[82] but later on he became acquainted with the precedent of 1862, and he declined to depart from it.[83] In 1890, at the instance of the Jewish Conjoint Committee, Lord Salisbury submitted the question to the Law Officers of the Crown, with the result that the precedent set by Lord John Russell was confirmed on its merits and not—as in the case of Lord Granville—quâ precedent only.[84] The last occasion on which an effort was made to obtain a reversal of this decision was in 1912. The Conjoint Committee addressed to the Secretary of State, Sir Edward Grey, an elaborate Memorandum reviewing the history and legal aspects of the question.[85] The reply was in effect a reaffirmation of the previous decisions, but the grounds on which it was rested were different. Sir Edward Grey did not discuss the reasonableness of the established interpretation, but he pleaded that any departure from it would only lead to the termination of the Treaty, and that this would serve neither British nor Jewish interests.[86]
The dispute with the United States pursued a very different course. In its earliest stages it was dealt with by minor diplomatic and consular officials very much in the spirit of Lord John Russell,[87] but when in 1880 the Russian Government began to expel American Jews from St. Petersburg, the question was taken in hand by the Secretary of State as one of gravity. It was at once recognised that a religious discrimination between American citizens could not be tolerated in any American Treaty. This was quite apart from the question of the legal interpretation of the Treaty of 1832.[88] That question, however, was dealt with vigorously by Mr. Blaine in July 1881. He took the broad view that the intention of the United States in 1832 was not, and could not have been, that which the Russian Government read into the Treaty, that the Russian interpretation was indefensible on moral grounds, and that on such questions local law cannot be permitted to override the express terms of a Treaty.[89] On this basis the United States patiently sought a reversal of the Russian view, but without success. The fight lasted thirty years. Eventually American public opinion became agitated, an organised movement for the termination of the obnoxious treaty was set on foot, and in December 1911 the House of Representatives at Washington sent a strongly worded joint resolution to the Senate declaring that Russia had violated the Treaty and calling upon the President to denounce it. The Russian Ambassador in Washington expressed official disapproval of the resolution, but President Taft acted upon it without waiting for the Senate, and denounced the Treaty on December 15. Thereupon the Senate contented itself with a joint resolution approving the action of the President.[90]
The question of the status of Jews in foreign lands has also arisen in Palestine and Morocco. In 1882 the Turkish Government, fearing a Zionist propaganda, prohibited the settlement of foreign Jews in the Holy Land. The United States protested, and in 1887 and 1888 similar action was taken by Great Britain and France. In the following year the restriction was removed.[91] In the case of Morocco, Great Britain solved the question in advance by stipulating in her Treaty with that country, negotiated in 1855, that her Christian, Mohammedan, and Jewish subjects visiting and residing in Morocco should be treated on an equal footing.[92]
DOCUMENTS.
Art. XIV.—Treaty of Carlowitz between the Emperor and the Grand Sultan, Jan. 26, 1699.[93]