Foreign Relations of the United States Diplomatic Papers, 1937, The British Commonwealth, Europe, Near East and Africa, Volume II

867N.55/109

The Consul General at Jerusalem (Wadsworth) to the Secretary of State

[Extract]

No. 344

Jerusalem, November 10, 1937.
[Received December 10.]

Sir: I have the honor to supplement herewith the brief news items reported in Section IV–1 of my Press Review of October 30, 1937,⁴⁶ regarding local reaction to the Draft Immigration (Amendment) Ordinance published in the official Palestine Gazette of October 21, 1937, and designed to effect certain modifications of the Palestine Immigration Ordinance of August 31, 1933.⁴⁷ The provisions of this original, or so-called principal, ordinance were analysed at length in the Consulate General’s voluntary report of May 5, 1937, entitled “History of Post-War Jewish Immigration into Palestine.”⁴⁶

The new draft ordinance contains only two provisions warranting special attention, the remainder being of relatively unimportant regulatory and routine nature.

Narrower Definition of Dependent.

First, and less important, is the much narrower definition of “dependent” for immigration purposes. The new draft ordinance limits this term to include only wives, children and fatherless grandchildren under 18, and, under certain prescribed circumstances, other relatives who may be found on investigation to be wholly dependent on an immigrant or permanent resident.

The Jewish Agency, I am confidentially informed by Dr. Maurice Hexter, American non-Zionist member of the Agency Executive, is dissatisfied with this definition, considering the deviation from the former broad principle is unwarranted. However, while protesting such deviation as a matter of principle, the Agency Executive, Dr. Hexter explained, accepts the narrower definition as a matter of practice and is limiting its present action to urging on the Government a proposal to the effect that the draft definition be enlarged to embrace parents over 55 years of age. In this respect, it is interesting to note that the Royal Commission in Paragraph 84 of its Report recommended a definition in substantial accord with that of the draft ordinance, although they suggested on Page 295 that “it would seem to be not unfair to define dependent immigrants in the case of an immigrant head of a family as wife, children under the age of 18, and old parents, in whose case some such minimum age as 55 might well be fixed”. It would seem not unlikely that favorable consideration will be given the proposal of the Jewish Agency in this respect.

Temporary Abandonment of Absorptive Capacity Principle.

The part of the draft ordinance which impels attention by its political implications and because of its strongly unfavorable reception in Zionist circles is the following proposed amendment to Section 5 of the Principal Ordinance:

5. The Principal Ordinance is hereby amended by the insertion immediately after Section 5 of the following new section:—

5A. The High Commissioner may, in his unfettered discretion, by Order in the Gazette, exercise all or any of the following powers, that is to say, he may—

(1) prescribe the maximum aggregate number of foreigners to be admitted to Palestine as immigrants during any specified period;

(2) prescribe categories of immigrants and fix the maximum number of persons to be so admitted in respect of any category;

(3) prescribe what proportion of

(a) the maximum aggregate number of immigrants,

(b) the maximum number of immigrants in any category,

may be persons of Jewish race.

Provided that if any question shall arise as to whether a person is or is not of Jewish race it shall be referred to the Director whose decision shall be final.

The purpose of this new section, as explained by the Attorney-General in an accompanying statement, is to give effect to the policy of His Majesty’s Government declared in Official Communiqué No. 11/37 dated July 7, 1937, the relevant passage being:

Further, since the period of the current Labour Schedule expires at the end of July, and some provision must be made for the ensuing period, they propose that a total Jewish immigration in all Categories of 8,000 persons shall be permitted for the eight months’ period from August, 1937, to March, 1938, provided that the economic absorptive capacity of the country is not exceeded.

This statement of policy, it may be noted, is generally accepted as having been based on a recommendation of the Palestine Royal Commission which, when considering “palliatives” to be adopted in the event that its major recommendation for partition should be rejected, advised (page 306 of Report):

… that there should now be a definite limit to the annual volume of Jewish immigration. We recommend that Your Majesty’s Government should lay down a “political high level” of Jewish immigration to cover Jewish immigration of all categories. This high level should be fixed for the next five years at 12,000 per annum, and in no circumstances during that period should more than that number be allowed into the country in any one year. The political maximum having been fixed, the High Commissioner should receive instructions to the effect that he may use his discretion to admit immigrants up to the maximum figure, but subject always to the economic absorptive capacity of the country.

Two questions here suggest themselves. Will the action proposed in the new draft ordinance constitute a departure from the principle of absorptive capacity; and, if so, is it intended that such departure be permanent?

In considering the first question it may be well to review briefly the history of the principle of absorptive capacity. This principle, that is, that immigration into Palestine should not be of such volume as to exceed the economic capacity of the country to absorb new arrivals, was first stated in the well-known Churchill Memorandum of 1922,⁴⁸ i. e., a year prior to the entry into force of the Palestine Mandate. It was not, however, stated in the Mandate itself. The principle was immediately put into effect by the Palestine Administration and has since been repeatedly affirmed by both the Administration and the Mandatory (i. e., British) Government, as being the recognized basis of its immigration policy. It was specifically reaffirmed by the Council of the League of Nations in 1930.⁴⁹

In this latter connection, it is interesting to note that, when referring to the above-mentioned decision of the Mandatory Power to reduce immigration for the eight months beginning August 1, 1937, to an arbitrary figure of 8,000, the Permanent Mandates Commission commented (see Page 233 of Minutes of the 32nd Extraordinary Session, August 1937) as follows:

The Commission does not question that the Mandatory Power, responsible as it is for the maintenance of order in the territory, may on occasion find it advisable to take such a step and is competent to do so, as an exceptional and provisional measure; it feels, however, bound to draw attention to this departure from the principle, sanctioned by the League Council, that immigration is to be proportionate to the country’s economic absorptive capacity.

Further indicative of the League’s attitude is the following from page 112 of the same minutes:

The Chairman also disclaimed any intention of opening a lengthy discussion on the point; he recalled, however, that in 1930 the Council, on the advice of the Mandates Commission, had accepted the principle put forward by the Mandatory Power itself—namely, that Jewish immigration should be authorized to the extent allowed by the country’s capacity of economic absorption.

If the accepted criterion were replaced by that of political possibilities, the result would be to modify the interpretation given up to the present to the Mandatory Power’s obligation to encourage by means of immigration the creation of the Jewish National Home.

Further, the Chairman of the Mandates Commission, speaking at the meeting of the League Council held last September, said when referring to the decision of the Mandatory to reduce immigration:

… the Commission felt it to be its duty to draw attention to the decision, temporary as we hope, taken by the Mandatory Power, and think it is clear that such a decision cannot become final unless it is sanctioned by a new decision to be taken by the Council reversing the decision already taken in 1930.⁵⁰

Mr. Eden, the British Foreign Secretary, in a speech before the same meeting of the League Council, commented on September 14 as follows:

The Permanent Mandates Commission have drawn attention to the reduction of Jewish immigration to a total of 8,000 persons in the next eight months. That, as the Commission recognized, is a purely temporary measure designed to meet temporary and exceptional conditions. If, as they say, it is a departure from a principle sanctioned by the Council on a former occasion, my colleagues will, I am sure, appreciate the special circumstances in which this decision has been taken. What is to happen when the period of eight months is over, that is to say, after the 31st of March, 1938, must necessarily depend upon the progress made in the meanwhile with the partition scheme.⁵¹

There can be no doubt, therefore, that there has been an abrupt departure, temporary though it may be, from the principle of absorptive capacity.

This brings us to the second and more important question as to whether this departure is designedly only temporary in character. This has now become the crux of the question, since Zionism, acting through the Jewish Agency, has had, perforce, to accept the current application of the new restrictive policy. In so doing, however, Dr. Hexter explains, the Agency Executive has expressed surprise that the draft ordinance appears practically to permit the giving of permanent effect to this policy. In this connection stress is laid on the assurances given in Mr. Eden’s statement (quoted above) that the measure was “purely temporary” and “designed to meet temporary and exceptional conditions”. The Agency Executive has, therefore, officially recommended that the proposed revision of Section 5 be amended by adding a proviso that it shall expire on March 31, 1938—this in spite of the above-cited concluding sentence of Mr. Eden’s comment to the effect that future policy must depend upon progress made towards adoption of the partition scheme.

A later statement in the matter is reported by press telegrams to have been made by the British Colonial Secretary, Mr. Ormsby-Gore, in reply to a question in the House of Commons on November 3, 1937.⁵² He is recorded as having admitted that the draft ordinance under consideration involves a departure from the principle of absorptive capacity, while reiterating at the same time Mr. Eden’s statement that its measures are of a temporary nature.

In concluding this discussion of the new draft ordinance, I venture to express concurrence in a view frequently heard in informal discussion in British official circles to the effect that the problem of administering this country will be so affected during the next year or so by primary considerations of a political nature as to require the maintenance in force of the current restriction of Jewish immigration to a maximum of not to exceed 12,000 a year.

. . . . . . . . . . . . . .

Respectfully yours,

George Wadsworth

46. Not printed.
47. Robert Harry Drayton, The Laws of Palestine in Force the 31st Day of December, 1933, rev. ed. (London, 1934), vol. ii, p. 745.
46. Not printed.
48. British Cmd. 1700: Palestine, Correspondence With the Palestine Arab Delegation and the Zionist Organisation, June 1922, p. 17.
49. In its resolution of September 8, 1930, approving the recommendations and conclusions of the Permanent Mandates Commission; League of Nations, Official Journal, November 1930, p. 1294.
50. League of Nations, Official Journal, December 1937, p. 899.
51. Ibid., p. 902.
52. United Kingdom, Parliamentary Debates, House of Commons, 1937–88, vol 328, p. 900.