841d.00/265
The Acting Secretary of State to Senator G. W. Norris84
Sir: I have the honor to acknowledge the receipt of the letter of December 15, 1920, signed by yourself and other Senators, with regard to the refusal of the British Embassy at Washington to visa passports of certain American citizens who, you explain desire to proceed abroad as an “American Commission on conditions in Ireland to visit England and Ireland to ascertain the facts with respect to present conditions in Ireland.” The opinion is expressed in the letter under acknowledgment that the refusal to admit these persons to England and Ireland “constitutes a violation of the right of free communication between the liberty-loving people of two democracies.” The opinion is further expressed that the refusal of these visas “calls for a protest to the British Government by the Government of the United States together with a request for an explanation of the British Government’s reasons for pursuing such a course.” Attention is called to the visit of British Commissions to this country while it was neutral during the war.
I am not entirely clear what British commissions you have in mind in referring to commissions which visited this country while it was a neutral. Representatives of several countries came here to purchase supplies. Their mission was evidently very different from that of the persons who desire to investigate conditions in Ireland.
In commenting on the questions raised by your communication, it may not be amiss to invite attention to an excerpt from a report of Secretary of State Foster to President Harrison under date of January 7, 1893, which was prompted by a Senate Resolution intended to obtain information respecting the subject of immigration, when in that year there was pending before Congress a bill for the suspension of immigration for the period of one year. In that report Secretary Foster said:
“The national power of self-preservation is peculiarly applicable to the exclusion of foreigners. Said Mr. Justice Gray in Nishimura Ekiu vs. United States (142 U. S. 659):
“‘It is an accepted maxim of international law, that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe.’
“In 1852, Mr. Everett, then Secretary of State, said that—
“‘This Government could never give up the right of excluding foreigners whose presence they might deem a source of danger to the United States.’ (Mr. Everett, Secretary of State, to Mr. Mann,85 December 13, 1852; 2 Wharton’s Digest, sec. 206.)
“And Mr. Justice Field, in delivering the opinion of the court in the Chinese Exclusion Case (130 U. S. 609), stated the doctrine thus:
“‘The power of exclusion of foreigners being an incident of sovereignty belonging to the Government of the United States, as a part of those sovereign powers delegated by the Constitution, the right to its exercise at any time when, in the judgment of the Government, the interest of the country requires it, can not be granted away or restrained on behalf of anyone. The powers of government are delegated in trust to the United States, and are incapable of transfer to any other parties. They can not be abandoned or surrendered. Nor can their exercise be hampered, when needed for the public good, by any considerations of private interest. The exercise of these public trusts is not the subject of barter or contract.’
“The subjection of conventional agreements to the power of self-preservation must be implied, for it can not be presumed that when governments contract with each other they will fail to take notice of the existence of so inherent a right of sovereignty and attempt to grant away that which, by the very nature of things, is incapable of being granted.”
The exclusion of foreigners is a matter of domestic concern. In harmony with the general principles enunciated in the above quoted extract from Secretary of State Foster’s report, Congress has extensively restricted the admission of-aliens into this country by providing for the exclusion of numerous classes of persons. And by the Act of August 8, 1918,85a Congress authorized the Executive to supplement existing statutory restrictions by further restrictions and prohibitions if he should feel that the public safety should so require. At present Congress has under consideration proposed legislation involving measures bordering on a total exclusion of a numerous class of aliens from this country for an extended period of time.
By calling attention to the fundamental principles in respect to the sovereign right of a nation to deal with the exclusion of foreigners in any manner which, in its judgment, the national interests may require, I do not mean to imply that arbitrary measures of exclusion directed in a discriminatory manner against a particular nation might not warrant appropriate diplomatic representations. But I beg to point out that the exercise of a sovereign right to exclude aliens can not furnish grounds for a diplomatic protest based on a claim of violation of legal rights.
I feel certain that the refusal of the visas which you find very objectionable in no way involves an unfriendly or discriminatory attitude against the Government of the United States, and I do not feel that the Department can properly question either the right or the judgment of the British Government to refuse admission in [Page 127] the present case. The Government of the United States has never acquiesced in the right of any other nation to question its action in such matters.
I have [etc.]