No. 6.
Earl Granville to Sir E. Thornton.

Sir: Referring to my dispatch of the 17th instant, in which I communicated to you a copy of the letter addressed to me by Mr. Lowell, requesting that he might be furnished with certain particulars connected with the arrest in Ireland, under the peace preservation (Ireland) act, 1881, on the 8th March last, of Mr. Joseph B. Walsh, who is said to be a naturalized citizen of the United States, I now propose to place before you the considerations which, in the opinion of Her Majesty’s Government, justify them in declining to recognize any distinction between the liability of foreigners [Page 244] and British subjects in respect to unlawful acts committed within the limits of British jurisdiction, or to admit any claim to exemption on behalf of any person, whether alien or citizen, from the operation of the laws which equally affect all persons residing in the dominions and under the protection of the Crown.

At the same time, I wish to observe that Her Majesty’s Government have not failed to note the friendly assurances given on the part of the President of the United States towards this country, as contained in Mr. Lowell’s letters of the 8th and 10th instant when applying for information with regard to the arrests in Ireland, under the act already cited, of Messrs. Walsh and Sweeney.

The right of every State to subject foreigners within its limits, no less than its own subjects, to every law made for the maintenance of law and order is an undisputed principle of the law of nations, and is a right necessarily inherent in the sovereignty of every independent community.

The principle is universally recognized, and is well stated by the great French jurist Portalis, as quoted by Sir Robert Phillimore in his “Commentaries upon International Law,” vol. 1, cap. xviii, section 334, p. 454:

“Chaque État a le droit de veiller à sa conservation, et c’est dans ce droit que réside la souveraineté. Or, comment un État pourrait il se conserver et maintenir, s’il existait dans son sein des hommes qui pussent impunément enfreindre sa police et troubler sa tranquillité? Le pouvoir souverain ne pourrait remplir la fin pour laquelle il est établi, si des hommes étrangers ou nationaux étaient indépendants de ce pouvoir. Il ne peut être limité, ni quant aux choses, ni quant aux personnes. Il n’est rien s’il n’est tout. La qualité d’étranger ne saurait être une exception légitime pour celui qui s’en prévaut contre la puissance publique qui régt le pays dans lequel il réside. Habiter le territoire, c’est se soumettre à la souveraineté.”

The principles thus stated apply alike to exceptional laws which the necessities of state have caused to be imposed, and to the action of the ordinary tribunals.

Foreigners, whether the native-born or naturalized subjects of their own state, are equally amenable to the laws for the time being in force in the country in which they are resident.

It will be observed that in the dispatch of the 18th December, 1848 (British and Foreign State Papers, vol. xlvii, p. 1242), Mr. Buchanan, the United States Secretary of State, admitted that the application of the law suspending the writ of habeas corpus was one to which his government might have “submitted in silence” if it “had been carried into execution in the same impartial manner against the citizens and subjects of all foreign nations.”

But on the occasions to which attention has now been called by Mr. Lowell there is no room for complaint of any exceptional treatment in the case of American citizens.

In the correspondence in 1866 between the British Government and the United States, the true light from which the matter is to be regarded was set forth very clearly in the statement made by Mr. Seward in his confidential dispatch to Mr. Adams, the substance of which will be found in Lord Clarendon’s dispatch to Sir F. Bruce of the 14th April, 1866.* Mr. Seward then said that he “frankly admitted that Americans, whether native-born or naturalized, owe submission to the same laws in Great Britain as British subjects, while residing there and enjoying the protection of the British Government;” and Mr. Seward added that “the United States Government had applied the converse of that principle to British subjects who were sojourning or traveling in the United States during the late rebellion.”

Mr. Seward, no doubt, here referred to the discussion which took place between the two governments in the year 1861, when the writ of habeas corpus was suspended by the Executive of its own authority in America.

This correspondence will be found in the British and Foreign State Papers, 1860–’61, vol. li, pp. 241, 243, 252, 264.

The principle was then admitted on both sides that if such a proceeding was lawfully authorized (as it has been, without question, in the case of Ireland), no complaint could be made if, under its principles, the subjects of foreign states were treated in like manner, or, as Mr. Seward expressed it in his letter to Lord Lyons of the 14th October, 1861 (p. 245), “with no greater or less rigor” than the citizens of the country in which such an exceptional law had become duly operative.

(Vide also the correspondence in the case of Mr. Shaw, British and Foreign State Papers, 1864–’65, vol. lv, p. 710.)

Having regard to the fact that amongst the most mischievous and dangerous attempts against peace and order in Ireland are those due to Irishmen who have become naturalized in America, it would be, in the opinion of Her Majesty’s Government, most highly impolitic to admit, either in principle or practice, any departure from the doctrine of their equal liability to the procedure which it has been found necessary to apply in the case of the subjects of the Queen.

Nothing could be more injurious than the belief that Irish-American citizens could carry on lawless projects in Ireland covered by an exceptional immunity.

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If that were permitted, they would become the principal agents in the crimes which it was the object of the act 44 Vict., cap. 4, for the protection of person and property in Ireland, to suppress.

In conclusion, I transmit, for your information, a copy of the reply which I am about to return to Mr. Lowell’s applications of the 8th and 10th instant, regarding the arrests of Mr. Joseph B. Walsh and Mr. Daniel Sweeney, or McSweeney.

I am, &c.,

  1. See appendix.