Chapter I: Introduction

ON INTERNATIONAL RELIGIOUS LIBERTY GENERALLY.

The Jewish Question is part of the general question of Religious Toleration. Together with the questions relating to the toleration of "Turks and Infidels," it raises the question of Religious Liberty in its most acute form. It is both local and international. Locally it seeks a solution through Civil and Political Emancipation on the basis of Religious Toleration. Internationally it arises when a State or combination of States which has been gained to the cause of Religious Toleration intervenes for the protection or emancipation of the oppressed Jewish subjects of another State. There have been, however, at least two occasions when the interventions have taken the contrary form of efforts to promote the persecution or restraint of Jews as such.[1]

As an altruistic form of international action the principle of intervention has been of slow growth. It required an atmosphere of toleration on a wide scale, and, before this atmosphere could be created, Christian States had to learn toleration for themselves by a hard experience of its necessity. They had, in the first place, to secure toleration for their own nationals and the converts of their Churches in heathen countries where the people could not be coerced or lectured with impunity. In the next place they had to achieve toleration among themselves.

Toleration among the Christian Churches--the so-called peace of Christendom--became necessary owing to the struggle between the Reformation and the Counter-Reformation; but it took the Thirty Years' War to prove its necessity. The proof is embodied for all time in the Peace of Westphalia--chiefly in the Treaty of Osnabruck, which was signed in 1648, at the same time as the famous Treaty of Münster. The ostensible effect of the Peace of Westphalia was to place Roman Catholicism and Protestantism on an equal legal footing throughout Europe. A secondary effect was to give a very marked stimulus to the cause of Religious Liberty generally. We may recognise its first fruits in, among other things, the campaign for unrestricted religious toleration during the Commonwealth in England, and its application to the Jews.[2]

It was not until 1814 that this principle was extended by Treaty beyond the pale of Christendom. This was in the Protocol of the four allied Powers--Great Britain, Russia, Prussia, and Austria--by which the union of Belgium with Holland was recognised. The return of the House of Orange to the Netherlands after the fall of Napoleon had entailed the promulgation of a new Constitution, which, in view of the democratic traditions of the French occupation, was necessarily of a liberal type. Among its concessions was an article granting the fullest religious liberty. When the Powers were called upon to sanction the union with Belgium, they did so on condition that the new Constitution should be applied to the whole country, and, in view of the religious differences prevailing, emphasised the article on Religious Liberty. This is the form in which it appears in the Protocol:--

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Art. I.--Cette réunion devra être entière et complète, de façon que les 2 Pays ne forment qu'un seul et même État régi par la Constitution déjà établie en Hollande, et qui sera modifiée, d'un commun accord, d'après les nouvelles circonstances.

Art. II.--Il ne sera rien innové aux Articles de cette Constitution qui assurent à tous les Cultes une protection et une faveur égales, et garantissent l'admission de tous les Citoyens, quelle que soit leur croyance réligieuse, aux emplois et offices publics.

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Incidentally the legal effect of this stipulation was to emancipate the Dutch Jews, though, as a matter of fact, the few disabilities under which they laboured did not immediately disappear. The Protocol was afterwards ratified by the Congress of Vienna and added to the Final Act as part of the Tenth Annexe,[3] though in other respects the Congress did not evince a very generous conception of Religious Liberty.

The conquest of religious liberty for Christians in heathen lands was a more convincing object lesson than the Peace of Westphalia. It was difficult for one Christian Church to acknowledge its equality with another Christian Church and to tolerate heresy, but it was far more distasteful to have to come to terms with the heathen and to accept toleration at his hands.

This was not altogether an altruistic form of political action. It was in some of its aspects part of the elementary duty of every State to protect its nationals in foreign countries.

The earliest instances of this action we find in China, where, in the thirteenth century, the Papacy concluded Treaties with the Mongol Emperors for the protection of Christian Missions.[4] It was not, however, until the Treaty of Tientsin in 1858 that Great Britain and France secured religious liberty for Christians in China.

In the Mussulman Levant, toleration for foreign Christians was secured by the so-called Capitulations. These were, in effect, treaties, although they were in the form of grants by the Sultans. They gave large exterritorial jurisdiction to the Ambassadors and Consuls of the States on whom they were conferred. The earliest grant of this kind occurs in the ninth century, when the Emperor Charlemagne obtained guarantees for his subjects visiting the Levant from the famous Khalif Haroun al-Rashid.[5] Later on, all the leading Christian States negotiated Capitulations with the Sultans. The existing British Capitulations are dated 1675, but an earlier grant was made in 1583.

One of the main objects of the Capitulations, besides personal security and trading rights, was to assure religious liberty for the nationals of the grantees. This benefited Jews at an early date, as the Capitulations and similar treaties generally provided for certain immunities for the native interpreters, servants and other employees of the privileged foreigners. As Jews were frequently so employed, they thus acquired protection against Moslem fanaticism.

In this way arose the system of Consular Protection which was long a boon to Jews in the Ottoman Empire and in the Barbary States.[6]

In spite of these experiences the idea of diplomatic intervention for the promotion of religious toleration in foreign States, especially on behalf of non-Christians, has only prevailed within narrow limits. It has been largely circumvented by the fact that such interventions must, even with the best will in the world, be more or less conditioned by the _raison d'état_. Unless they are likely to promote policy, or at any rate to coincide with policy, the usual course when they are invoked is to take refuge in the so-called principle of non-intervention.

It was, indeed, not until the seventeenth century that the question was seriously discussed at all by the jurists, although Cromwell had already laid down the splendid principle, in the case of the persecution of the Vaudois, that "to be indifferent to such things is a great sin, and a deeper sin still is it to be blind to them from policy or ambition." The first impulses of the international lawyers were much in the Cromwellian spirit. Bacon, Grotius, and Puffendorff all strongly maintained the legality not only of diplomatic but also of armed intervention to put down tyranny or misgovernment in a neighbouring State, and a century later they were followed by Vattel. Sweden acted upon the principle in her intervention on behalf of the Protestants of Poland in 1707, and, in 1792, it was given its widest scope, and was formally adopted, by the French Revolution in the famous decree of the Convention which promised "fraternity and succour to all peoples who wish to recover their liberty."

The doctrine, however, lingered only anæmically through the early decades of the nineteenth century. In face of the growing delicacy of the international system, it was gradually abandoned for the conservative principle of non-intervention, based on the independence and equality of all States.[7] But even this principle has not always been observed in regard to small States, although, curiously enough, Russia invoked it against Great Britain for the protection of King "Bomba" of Sicily, in the case of the Neapolitan prison horrors.[8] Abstention from intervention in certain glaring cases of inhumanity by foreign Governments--such as the persecution of the Russian Jews--has been defended on the ground of absence of treaty rights, but, as a matter of fact, this argument, too, has not been consistently adhered to.[9] In all cases, whether of great or small States, treaty rights or no treaty rights, the real test has almost always been the frigid _raison d'état_. The United States has been less affected by this restriction than the European Powers, and on many occasions has shown a really noble example of the purest altruism in international politics.[10]