841d.00/265 The Acting Secretary of State to Senator G. W. Norris 84 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," December 13, 1852; 2 Wharton's Digest, sec. 206.) The same to the other Senators signatory to the letter of Dec. 15, 1920, supra. 85A. Dudley Mann, special agent (diplomatic) of the United States in Switzerland, 1850-53. "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 selfpreservation 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 85 Act of May 22, 1918 (40 Stat. 559); proclamation dated Aug. 8, 1918 (40 Stat. 1829). 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.] NORMAN H. DAVIS BRITISH REJECTION OF THE PROPOSAL TO EXEMPT AMERICAN COASTWISE SHIPPING FROM THE PANAMA CANAL TOLLS 811f.8123/91 The Ambassador in Great Britain (Harvey) to President Harding LONDON, September 19, 1921. 86 DEAR MR. PRESIDENT: I fear there is no escape from the conclusion that nothing can be accomplished in the immediate future with respect to an adjustment of the Panama Canal Tolls matter that would be acceptable to both countries. This is what has happened: I took up the subject with Lord Curzon at what seemed to be the most opportune moment. . . . I prefaced my statement by saying that I had no proposition to submit and was merely groping for a solution and would greatly appreciate his assistance. With that object in view, I should like to speak to him with the utmost frankness regarding the situation in the United States in a wholly personal and unofficial way. He responded most cordially to the effect that our relations had become such that he should feel hurt if I did not approach every subject in that spirit. Thereupon, I laid the situation before him, pointing out that the whole matter was that of the interpretation of a treaty,86 regarding which our most prominent international lawyers differed. Mr. Root holding one view and Senator Knox and Mr. Sutherland the opposite. Mr. Hughes, to my knowledge, had never expressed an opinion upon the subject. Personally, in the contest in the Senate in 1913 I had upheld the contention of President Wilson and Mr. Root but recently, as the result of careful study, I had been greatly impressed by the arguments of Senator Knox. For the immediate purpose I did not consider it necessary to consider the merits of the case from a technical viewpoint, but I had all of the documents bearing upon the matter and should be ready to do so at any time. The immediate problem was, to my mind, purely practical. The Republican Plat 86a 86 Received in the State Department from the White House on Oct. 11. Signed Nov. 18, 1901, between the United States and Great Britain, John Hay and Lord Pauncefote being plenipotentiaries; for text, see Foreign Relations, 1901, pp. 243-246. form, in response to public demand, had committed the party in power to exemption of American coastwise traffic from tolls, the President during his campaign had specifically approved this principle, and a Bill sponsored by Senators Knox and Borah, designed to fulfill this pledge, was pending in Congress. It would have passed and become a law already, but for the reluctant consent of those Senators to let me undertake to resolve the matter through diplomatic negotiation. This, I remarked, was how it then stood. I had no plan when I left America, but had given the subject a great deal of thought and had a tentative suggestion to put before him for his consideration, which might or might not prove acceptable, but might tend, at least, to a development from which a solution might be evolved. I had not submitted it to my Government, because it was simply the result of groping, and I felt the need of his greater experience in putting it into concrete form if he should feel that it might in any way prove to be feasible. In other words, I should like him to regard the attempt as a little enterprise of our own until we could determine whether it possessed the elements of practicability. If we could reach an understanding along the line which I had in mind, or along any line which might suggest itself to him, I thought that we could reasonably assume that we were rendering a real service in eliminating at least one of the causes of irritation between our two countries. He responded that nothing could be more gratifying to him than to co-operate in such an endeavour. Thereupon I outlined my tentative suggestion. Recalling that the chief contention of the British Government had been that exemption of tolls upon our coastwise traffic would result in unfair discrimination against Canada, I wondered whether, if the Treaty were so modified, or amended, as to put Canada upon the same basis as the United States with respect to its coastwise traffic, the British objection might not be overcome. I pointed out that from the American point of view this would be a distinct concession, for which Canada should be grateful to both countries, thus inculcating a spirit of helpfulness which would surely tend to enhance friendliness all around. I noted further that in the event of the passage of the Bill, which would surely transpire when it came to a vote, Canada would be deprived of a privilege which, ultimately, might prove of great value. I noted, further, that such an arrangement would not change in the least the basis of equality of toll charges on foreign trade as between the two countries. That was, for example, to say that the charges upon cargos from New York and Liverpool consigned to Japanese, Chinese and other Pacific ports would continue to be identical as at present. I am plified the argument in minor respects, but these constituted the major points. Lord Curzon manifested the keenest interest and promised his sympathetic consideration, while he should familiarize himself with the conditions which were not fresh in his mind. There the matter was left. At the expiration of ten days or two weeks Lord Curzon brought up the subject, saying that it was most disagreeable to him to have to inform me that he feared nothing could be done about the matter. He had talked over the suggestion with the members of the Imperial Conference most informally, and Mr. Meighen 7 had said promptly that Canada's devotion to the Empire was such that she would not accept any differentiation in her favor as against the United Kingdom or the other Dominions. Consequently, the Conference had agreed unanimously that no proposal, or even suggestion, tending to relieve the situation could be entertained. I tried patiently to explain that no such differentiation was involved, inasmuch as Canada was the only portion of the Empire engaged in purely coastwise traffic, but the attempt was futile. . . . Needless to say, the passage of the Bill on the eve of the Conference 88 would be most unfortunate. Could it not be averted without impairing in any degree our rights, upon the ground that the Government is not in a position at the present time to sacrifice two or three million dollars a year, which it derives from the Panama Tolls? It would not be advantageous to have it announced that action is postponed further because of the effect it might have upon the Conference, since doing that might give rise to harmful discussion. The ideal thing to my mind, would be to induce Borah to let the business rest and slip by without publicity. With best regards [etc.] GEORGE HARVEY 500.A 4/190% Memorandum by the Secretary of State of a Conversation with the British Ambassador (Geddes), September 20, 1921 [Extract 80] 90 The Ambassador said that he had been instructed by his Government to say that they were satisfied with the proposed agenda 9o save that they desired to add the subject of the Panama Canal tolls. STRt. Hon. Arthur Meighen, Canadian Prime Minister and Secretary of State for External Affairs. 88 The Conference on the Limitation of Armament, Washington, 1921-1922. "Further extracts from memorandum printed in vol. 1, p. 71. 90 For the Conference on the Limitation of Armament, Washington, 1921-1922. 115367-36-vol. II—9 |