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RUSSIA AND AMERICAN JEWS.
BY EDMUND ARTHUR DODGE,
Of the New York Bar.

USSIA'S discrimination against American citizens of the Jewish faith has long been a subject of complaint on the part of our Government; and the Department of State has consequently ceased to grant, or permit the granting by our representatives abroad, of passports as a matter of right, to such citizens, who may desire to visit, or travel in the Russian Empire.

The law as to issuing passports is, indeed, permissory, and not obligatory, the decision being left with the Secretary of State, under section 4075 of the Revised Statutes, which provides that "the Secretary of State may grant and issue passports . . . under such rules as the President shall designate and prescribe for and on behalf of the United States." The "General Instructions" prescribed for our Ministers in foreign countries have been to the same effect. It is in the discretion of the Secretary to grant or not to grant, especially if he has reason to believe, as in the case of Jews, that the passport, though issued, will not be properly respected by the Government of the country in which it is particularly intended to be used.

Yet Russia has been, on the whole, uncommonly liberal in her treatment of foreigners. They may be landholders, and as such are eligible to membership in the rural provincial assemblies, with the right to vote; though foreigners are not permitted to own real estate for obvious reasons-in the frontier governments of the west. Other wise foreigners-with the exception always of Jews-can do business in these provinces the same as native Russians; and though they are not allowed to enter the civil service, an exception is made "in favor of professional and scientific men, such as physicians, surgeons, apothecaries, architects, engineers, professors, and teachers of the arts and

sciences, who may acquire in the service of the State the rank attached to their respective capacities, and receive decorations. . . . A foreigner may hold a commission in the Russian army, and take the several ranks in it; and, having the rank of Lieutenant-General, or full General, or of Field-Marshal, may be appointed Senator and member of the Council of the Empire." (Merrill, "Comparative Jurisprudence and the Conflict of Laws," page 81, note citing the Report of the English Naturalization Commission of 1869). Twenty years ago there were, in the sixteen western provinces of Russia-that is, in Lithuania, White and Little Russia, and Bessarabia-2,843,400 Jews, and about 432,ooo in the five Polish provinces; and more than four-fifths of these were concentrated in the towns. In Russian Poland the Jews were in the proportion of one to seven inhabitants; and in the adjacent provinces they constituted about ten to sixteen per cent. of the population; while in certain districts the proportion was about one-third; in one, that of Tchaussy, reaching fifty per cent.

The results of the recent Russian census are not yet known; but a rough estimate has been made that at present the Jews constitute about three per cent. of the whole population of the Empire, or more than four millions-though this would seem to be too great a total as compared with twenty years ago and, according to a partial census taken, there are over 2,800,000 in the western and southwestern provinces-of whom more than three-fourths live in towns-or over II per cent. of the population; 77,275 being in the three townships of Odessa (containing 73,389), of Kerch, and of Sebastopol-the proportion of Jews in Odessa being thus 35 per cent.; and 431,800 in five governments of Poland out of ten, or II per cent.

of the population. None but the wealthiest and best educated of the Jews are allowed to enter Great Russia-being, roughly speaking, northern and central Russia to the Urals and the White Sea-yet many are found scattered all through that portion of the Empire.

The only treaty between the United States and Russia containing anything applicable to the question of passports is that of December 6-18, 1832-negotiated during the the first administration of President Jackson, between James Buchanan, afterwards President, our Minister at St. Petersburg, and Count de Nesselrode, Vice-Chancellor of the Russian Empire. Article 1. of this treaty reads as follows: "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., after providing for the free disposition by will or otherwise of real or personal property belonging to a citizen or subject of one of the high contracting parties, situated within the jurisdiction of the order, (except where such real property might descend to a person incapable, by reason of alienage, of holding it), concludes as follows: "But this article shall not derogate in any manner from the force of the laws already published, or which may hereafter be published by His Majesty, the Emperor of all the Russias." The treaty was to continue in force until January 1st, 1839; and was thereafter subject

to determination upon one year's notice from either party. Such notice not having, so far, been given, it still stands. There is no treaty between the two countries for the protection of naturalized citizens; but, if provided with passports, such citizens of the United States would be entitled to receive, at the hands of this Government, all the protection in Russia due to native-born Americans.

Mr. Blaine, writing to our Minister at St. Petersburg in 1881, (MSS. Inst. Russia; For. Rel. 1881) said, that from the cases theretofore reported from that Legation, it appeared that the action of the Russian authorities towards American Jews, visiting Russia, had been either, first: absolute prohibition of residence in any of the cities of the Empire, because, it was claimed, the Russian law permitted no native Jews to reside there, and that the Treaty of 1832 gave American citizens visiting Russia no other rights or privileges than those accorded to native Russians; or, secondly: permission to reside and carry on business, conditionally on membership in the first guild of Russian merchants and taking out a license. He also said, that as the question was traced backward the conflict between these two courses of action became more apparent, and a connected understanding of the facts became 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 purchase or lease real estate."

Though Article I. of the treaty says expressly that "the inhabitants of their respective States shall mutually have liberty to enter the ports, places and rivers of each party wherever foreign commerce is permit

ted"; that "they shall be at liberty to sojourn and reside in all parts whatsoever of said territories in order to attend to their affairs"; and that they "shall enjoy to that effect, the same security and protection as natives of the country wherein they reside"; there remains, unfortunately, the provision: "on condition of their submitting to the laws and ordinances there prevailing, and particularly to the regulations in force concerning commerce"; as well as the latent ambiguity in the words quoted, "the same security and protection as natives of the country wherein they reside"; for a little twisting might easily make these words mean, Russians and Russian Jews, as distinguished from each other; so that American Jews would only have the same measure of security and protection accorded them as Russian Jews would receive. Moreover, as this proviso in Article I. should be taken in connection with that at the end of Article X.-where, at first view, there appear to be no limitations placed upon the reciprocal rights of the citizens and subjects of either of the high contracting parties-stipulating that that Article is not to "derogate in any manner from the force of the laws already published, or which may hereafter be published, by His Majesty the Emperor of all the Russias to prevent the emigration of his subjects," the Russian Government might claim that this would apply to laws which might thereafter be passed for the expulsion of certain classes of its subjects, as well as those to "prevent the emigration" of certain other classes.

In 1895 difficulties arose owing to the refusal by the Russian Consul-General at New York to visé passports issued by this Government to citizens of Jewish faith; and Mr. Breckenridge, our Minister to Russia, received instructions from Secretary Gresham to present the views of our Government. Mr. Breckenridge thereupon addressed a note to Prince Lobanoff, Russian Secretary for Foreign Affairs (May 5-17, 1895) in

which he said that Prince Lobanoff was aware it had long been a matter of deep regret and concern to the United States that any of their citizens should be discriminated against for religious reasons in Russia; that it was repugnant to our laws and the national sense "for a foreign official, located within the jurisdiction of the United States, to there apply a religious test to any of our citizens to the impairment of his rights as an American citizen or in derogation of the certificate of our Government to the fact of such citizenship"; that it was "not constitutionally within the power of the United States, or of any of its authorities, to apply a religious test in qualification of the equal rights of all citizens of the United States"; and that "no law or principle" was more "warmly cherished by the American people." Mr. Breckenridge then says: "It is therefore impossible for my Government to acquiesce in any manner in the application of such a test within its jurisdiction by the agents of a foreign power."

The Russian Foreign Office having thereafter been furnished, at its request, with an outline of the powers granted to, and limitations placed upon, the Federal Government by the Constitution and Amendments thereto, and particularly by the First Amendment, forbidding Congress to make any law "respecting an establishment of religion" or "prohibiting the free exercise thereof"; Prince Lobanoff, replying on July 8th to Mr. Breckenridge's note of May 17th, writes: "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 the 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." . . . "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 to these categories. . . . 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 make no apology for quoting this communication so fully, for it is a clear statement, and its arguments difficult to answer-that is, if one wishes to be frank.

But Mr. Breckenridge claims (as did Mr. Buchanan in 1832)—and, it is presumed, the Department also-that the Russian Foreign. Office does not "understand our institutions." Thus he says, writing Prince Lobanoff on July 20th, "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." Now, Prince Lobanoff shows, in his note of July 8th, that he quite sufficiently grasps the theory of our institutions, and rightly fails to find that it affects the question at issue. As to "differences of speech." Mr. Breckenridge is, unfortunately, not the first of our diplo

matic envoys who has been embarrassed at a time when fluency, in at least French, would have been most desirable. Though having an honorable record in the Halls of Congress, he certainly was-if there is anything at all in diplomatic experience-at a disadvantage as compared with the Russian Foreign Minister; for Prince Lobanoff, on the very day that Mr. Breckenridge sent his final note on this subject-to him (December 6th, 1895), had attained the age of seventy-one years, having been from his twentieth year in the Russian diplomatic service. He had occupied successively the posts of Ambassador at Constantinople,-where the Czar Alexander II. had utilized his services in the negotiation of the Treaties of San Stefano and Berlin,-at London, and at Vienna; and in 1895, though named, and already en route, as Ambassador at Berlin, he was recalled to fill the place of Minister of Foreign Affairs. He only lived until the summer of 1896.

The position of the Department, in 1895, would no doubt have been stronger had its contention been made on the ground of rights accorded under the treaty of 1832; or, in default of any concession proved, it had claimed that it could not grant exequaturs if the Russian consuls were required to hold to their original instructions. At that very time, Secretary Olney's tone was firm. and unyielding toward England in the Venezuela boundary matter; yet had he taken as equally firm and uncompromising tone with Russia his action might not have met with so much popular approval. Indeed, an examination of the Chinese Exclusion Law (as renewed for another ten years), will show that the same arbitrary acts alleged against the Russian Consuls in the case of American Jews, are authorized by the government of the United States where intending Chinese immigrants are concerned, not excepting those of a higher grade than, and of superior education to, the proletariat-of all of which

none is probably better aware than the Foreign Office at St. Petersburg. It is evident, then, that some other method must be adopted in order to bring the Russian Government to our point of view, even than the argument based upon the assumed rights of American Jews under the existing treaty; and that, if treaties are to be made with for

eign Powers which shall stand any legitimate strain that may be put upon them, we must so change the requirements of our diplomatic system, in conformity with the best European models, that, by training and experience, our ambassadors and ministersto say nothing of those of lower rank, and in the consular service-may be second to none.

THE EVOLUTION OF A LEGAL SKY PILOT.
BY W. ARCHIBALD MCCLEAN,
Of the Gettysburg, Pennsylvania, Bar.

ANTOS DUMONT with his dirigible

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balloon making a trip around the Eiffel Tower and back to the starting point has given a new impetus to the air sailing business. It is an expensive experiment or luxury at present, but with the new impetus and the new century no one is quite willing to commit one's self where it is all going to end. If balloons or air ships are to be the vogue, if the automobile is to be made a back number and man is going to fly in dirigible vehicles through the sky, then it is time to see what the law is going to do and say on the subject. Law is so elastic that it can adjust itself to all new conditions and applying old principles make them answer arising needs. If the law knows any uncertainty on the matter Legislatures are called upon and they pile on the remedies and the panaceas until they are often worse then the disease. Without resorting to the law making power, the following is a speculation as to the ways with which the law will greet and treat a balloon or flying era.

The first thing a lawyer wants is precedent. Have the law and authorities ever said anything about a balloon? Very little, one old case and one as late as five years ago make up the entire law that can be found on the subject of balloons.

The first one tells of a defendant who as

cended in a balloon near the plaintiff's garden and came down in the garden. Becom ing entangled and being in a perilous situation, he called for help and the crowd who were pursuing the balloon broke into the garden, trod down the vegetables therein growing and extricated the defendant from his position. The owner of the garden sued the aëronaut in trespass for damages done his garden and inclosure by the defendant and the crowd rescuing him, amounting to ninety dollars.

The court said the counsel for the defendant erred in supposing that the injury committed by his client was involuntary and that done by the crowd was voluntary and that, therefore, there was no union of intent. The intent with which an act is done is by no means the test of the liability of a party to an action of trespass. If the act causes the immediate injury whether it was intentional or unintentional, trespass is the proper action to redress the wrong. Where an immediate act is done by the coöperation or the joint act of several persons, they are all trespassers, and may be sued jointly and severally, and any one of them is liable for the injury done by all. To render one man liable in trespass for the acts of others it must appear either that they acted in concert, or that the act of the individual sought to be charged, ordin

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