Besides natural born and naturalised Jewish subjects of intervening States, there is another cla.s.s of Jews on whose behalf protective interventions have been exercised on grounds of right. These are native Jews who for one reason or another have acquired Consular Protection under the Capitulations and other exterritorial privileges enjoyed by foreign States in Oriental and semi-barbarous countries. The origin of this protection has already been briefly described.[94]

The exact national status of the persons on whom it is conferred is not easy to define, but in the Foreign Jurisdiction Orders in Council they are a.s.similated with "British subjects" so far as British exterritorial jurisdiction is concerned,[95] and this roughly has been the practice of all States exercising Consular Protection.

The system lent itself easily to abuse and fraud, chiefly because exterritoriality in the countries in which it was exercised generally carried with it immunity not only from arbitrary exactions but also from ordinary taxation. Moreover, in the case of native Jews who often suffered from Moslem fanaticism--chiefly in Morocco and Persia--Consular Protection was exercised from motives of humanity, and for that purpose more or less fict.i.tious qualifications were found for them. We get a curious glimpse of the loose way in which Consular Protection was granted from the Anglo-Turkish Treaty of 1809. Under the Capitulations (Arts. LIX and LX) native interpreters and servants of the Emba.s.sy were free of taxes and indeed of Turkish jurisdiction generally. By the Treaty of 1809 (Art. IX) it was agreed that in future the _berats_ of interpreters should not issue to "artizans, shopkeepers, bankers and other persons not acting as interpreters."[96] Owing to this stipulation and the sensitiveness of the Porte in regard to its jurisdiction over its own subjects, irregular Protections were discontinued in Turkey.

This, however, was not a source of serious grievance to Jews, as on the whole they have been extremely well treated in the Ottoman Empire.

It is not generally known--and the fact may prove of peculiar importance at the present moment--that all Russian Jews settled in Palestine are, on certain conditions, ent.i.tled to claim British protection and so much of the status of British subjects as this privilege implies. In 1849, when there was a considerable influx of Russian Jews into Jerusalem, the Russian Government, having no Consul in the city and for other reasons, desired to get rid of the responsibility of protecting them. Accordingly an arrangement was arrived at between the British and Russian authorities permitting such Jews, on receiving papers of dismissal from their Russian allegiance from the Vice-Consul at Jaffa, to register at the British Consulate as British proteges. A large number availed themselves of the privilege. There is nothing to show that the Agreement of 1849 was ever cancelled.[97]

In Morocco the Consular Protection System affected Jews more closely than in Turkey. It was for many years their sole protection against the oppressions of the Bashaws and the cruel fanaticism of the people, and on this ground there was much to be said for its so-called abuses and irregularities. The right of protection seems to have been derived from a very loosely worded article of the Anglo-Moorish Treaty of 1728, granting immunity from taxation to all the native servants of British subjects, whether Moors or Jews.[98] This Treaty was abrogated by the general Treaty of 1856 (Article x.x.xVIII) and a more definite scope was given to British Consular jurisdiction (Article III), but in a Treaty of Commerce signed on the same day, it was expressly stipulated (Article IV) that native agents employed by British subjects "shall be treated and regarded as other subjects of the Moorish dominions."[99]

Nevertheless, the old abuses continued in virtue of the "Most favoured nation" clause,[100] and a very large number of native Jews received protection at the hands of the Consuls of all the Powers, partly on account of their usefulness and partly on account of the insecurity of their lives and property under the Moorish authorities.

It was, however, difficult to restrain Moorish fanaticism, and the Consuls were frequently called upon to protect their Jewish proteges or to avenge outrages of which they became victims.[101]

DOc.u.mENTS.

PROTECTION OF RUSSIAN JEWS IN PALESTINE.--THE AGREEMENT OF 1849.

_Earl Russell to the Jewish Board of Deputies._

FOREIGN OFFICE,

_February 1st, 1864_.

SIR,--I am directed by Earl Russell to acknowledge the receipt of your two letters of the 29th of December and 22nd inst., in the former of which you enclose a Memorial to His Lordship from the Jews of Safed and Tiberias, praying that they may again be placed under British protection, of which they a.s.sert that they were deprived by Mr. Consul Finn under the circ.u.mstances stated by them.

I am now to state to you in reply for the information of the Memorialists that Her Majesty's Government have every disposition to give effect to the arrangements which were made with the Russian Consul General in 1849, namely to afford British protection to those Jews who, having declined to return to Russia, have divested themselves of their Russian Nationality, and so forfeited the protection to which _prima facie_ they were ent.i.tled to look. But I am to add that it must be distinctly understood that this can only be done by the production on the part of the individual seeking British protection of the formal letter of Dismissal from the Russian Consulate, shewing that he has been cast off from Russian protection, and would thus be left otherwise unprotected. If he can produce no such letter, Her Majesty's Consular Officers will not be ent.i.tled to grant to such individual British protection.

Mr. Finn acted erroneously in originally supposing that British protection could be granted to Russian Jews without the production of formal letters of dismissal, and it was in consequence of instructions from Her Majesty's Government that he withdrew British Consular protection from those persons who could not produce such letters. Lord Russell, however, is of opinion that Mr. Finn has shewn satisfactorily that his good offices have nevertheless not unfrequently been extended to the Jewish Communities at Safed and Tiberias, and that they have no just reason to complain of him.

A delay has been occasioned in answering your first letter by the necessity of communicating with Mr. Finn and of making other inquiries with regard to the statements contained in the Memorial.

I am, Sir,

Your most obedient humble Servant,

I. HAMMOND.

J. M. MONTEFIORE, ESQ.,

4 GT. STANHOPE ST., MAYFAIR.

(Minute Books of Board of Deputies, 1864.)

ART. III. ANGLO-MOORISH TREATY _of January 14, 1727-8_.

III. That the Menial Servants of his Britannic Majesty's Subjects, the Natives of the Country, either Moors or Jews, be exempt from Taxes of all kinds.

("A General Collection of Treaties" (1732), iv. 458.)

ART. III. ANGLO-MOORISH GENERAL TREATY _of December 9, 1856_.

EXTRACT.

Article III....The British Charge d'Affaires shall be at liberty to choose his own interpreters and servants, either from the Mussulmans or others, and neither his interpreters nor servants shall be compelled to pay any capitation tax, forced contribution, or other similar or corresponding charge. With respect to the Consuls or Vice-Consuls who shall reside at the ports under the orders of the said Charge d'Affaires, they shall be at liberty to choose one interpreter, one guard, and two servants, either from the Mussulmans or others; and neither the interpreter, nor the guard, nor their servants, shall be compelled to pay any capitation tax, forced contribution, or other similar or corresponding charge. If the said Charge d'Affaires should appoint a subject of the Sultan of Morocco as Vice-Consul at a Moorish port, the said Vice-Consul, and those members of his family who may dwell within his house, shall be respected, and exempted from the payment of any capitation tax, or other similar or corresponding charge; but the said Vice-Consul shall not take under his protection any subject of the Sultan of Morocco except the members of his family dwelling under his roof.

(Bernhardt: _op. cit._, p. 556.)

ART. IV. ANGLO-MOORISH TREATY OF COMMERCE _of December 9, 1856_.

EXTRACT.

Article IV. The subjects of Her Britannic Majesty within the dominions of His Majesty the Sultan shall be free to manage their own affairs themselves, or to commit those affairs to the management of any persons whom they may appoint as their broker, factor or agent; nor shall such British subjects be restrained in their choice of persons to act in such capacities; nor shall they be called upon to pay any salary or remuneration to any person whom they shall not choose to employ; but those persons who shall be thus employed, and who are subjects of the Sultan of Morocco, shall be treated and regarded as other subjects of the Moorish dominions.

(_Ibid._ p. 573.)

FRANCO-MOORISH "ReGLEMENT" REGARDING PROTECTION, _August 19, 1863_.

EXTRACTS.

La protection est individuelle et temporaire.

Elle ne s'applique pas en general aux parents de l'individu protege.

Elle ne peut s'appliquer a sa famille, c'est-a-dire a la femme et aux enfants demeurant sous le meme toit.

Elle est tout au plus viagere, jamais hereditaire, sauf la seule exception admise en faveur de la famille Benchimol, qui, de pere en fils, a fourni et fournit des censaux interpretes au port de Tanger.

Les proteges se divisent en deux categories:

La premiere categorie comprend les indigenes employes par la Legation et par les differentes Autorites consulaires.

La seconde categorie se compose des facteurs, courtiers ou agents indigenes employes par les negociants francais pour leurs affaires de commerce....

Le nombre des courtiers indigenes jouissant de la protection francaise est limite a deux par maison de commerce. Par exception, les maisons de commerce qui ont des comptoirs dans differents ports pourront avoir des courtiers attaches a chacun de ces comptoirs et jouissant a ce t.i.tre de la protection francaise....