701.6111/505
The Secretary of State to the Attorney General (Palmer)
Sir: I have the honor to acknowledge the receipt of your letter of November 29, 1920, in which, in connection with the proceedings [Page 479] now pending before the Secretary of Labor looking to the deportation of Ludwig C. A. K. Martens, you invite attention to Section 3 of the Immigration Act of February 5, 1917, providing
“That nothing in this Act shall be construed to apply to accredited officials of foreign governments, …”
and request an expression of my opinion upon the meaning of the words quoted and their applicability to the status of Mr. Martens. You state that Mr. Martens does not claim the diplomatic immunity referred to in this Department’s letter to you of April 8 last, but bases his claim upon the Act of February 5, 1917.
I am of the opinion that the term “accredited officials of foreign governments” was meant to refer to those officials of foreign governments who have come to the United States as representatives of their governments, as, for example, diplomatic officers.
Before there can be an accredited officer of a foreign government, however, it must be admitted that the government which the person purports to represent actually exists, and that the officer is in fact accredited by such existing government. The question of whether the so-called Russian Socialist Federal Soviet Republic should be considered by the United States as an existing government is entirely within the discretion of this Government. The underlying principles in such a case were enunciated by Chief Justice Marshall in the case of Rose v. Hymely (4 Cranch 239 [241]) referred to in the memorandum enclosed with this Department’s letter to you of April 8, 1920.
This Government has not recognized the Bolshevist regime at Moscow as an existing government, and has on more than one occasion publicly announced that Mr. Martens had not been received or recognized as “the representative of the Government of Russia or of any other government”.
I am, therefore, of the opinion that the above quoted provision of the Immigration Act of February 5, 1917, has no application to the case of Mr. Martens. As of interest in this relation I may refer to the case of Hollander v. Baiz, Consul General, 41 Fed. 735, and to the opinion of the Supreme Court of the United States (135 U.S. page 403), sustaining the ruling of the District Court in the case just mentioned.
I have [etc.]