393.1121 Smit, Albert H./31
The Secretary of State to the Minister in China (Johnson)
Sir: The Department refers to the Legation’s telegram No. 252, of April 7, 1930, stating that following an accident, in which an automobile driven by an American citizen, Mr. Smit, caused the death of a Chinese, the Chinese local authorities canceled Mr. Smit’s license to operate a motor car. The telegram set forth the American Minister’s opinion that this action was within the power of the Chinese authorities; that he had made no objection to the action and did not intend to intercede on behalf of Mr. Smit to obtain a new license; that he had informed the Chinese Minister for Foreign Affairs orally that the Legation did not recognize the jurisdiction of the Chinese court over Mr. Smit; and that he had informed Mr. Smit that the latter did not need to pay a fine imposed by the Chinese court. Reference is made also to a memorandum of a conversation held by the Minister with the United States District Attorney on March 11, 1930, in the course of which the Minister stated that it seemed to him that it was quite within the province of the Chinese to issue or to refuse to issue a motor car license without giving cause.
The Department concurs in the belief of the American Minister that in the case under discussion it would have been inadvisable to intercede on behalf of Mr. Smit in order to endeavor to obtain a renewal of his motor car license. Although the phraseology used does not make the point entirely clear, the Department assumes that the license which has been canceled by the Chinese authorities was a license authorizing the use of the motor vehicle in question, and not an operator’s permit issued to Mr. Smit authorizing him to drive a motor car.
Assuming this to be the case, the Department questions whether it is entirely “within the province of the Chinese to issue or refuse to issue a motor car license without giving cause”. Through the operation of the most-favored-nation clause, American citizens are entitled to the rights accorded to British subjects by Article IX of the British treaty with China of 1858,20 namely, “to travel for their pleasure or for purposes of trade, to all parts of the interior, under Passports, which will be issued by their Consuls and countersigned by the Local Authorities”. Under Article XV of the American treaty with China of 1844,21 relating to trade, they may insist that “they shall not be subject to any new limitations, nor impeded in their business by monopolies or other injurious restrictions”. The Department would not be willing to concede to the Chinese officials unquestioned [Page 521] authority “without giving cause” to deprive American citizens of the right to utilize motor vehicles owned by them in travel or in the conduct of their business, especially if this right were enjoyed by citizens in China of other nations.
The right to use motor vehicles in China is one which is presumably of great present and potential importance to American citizens. The observations made by the Minister in his conversation with the District Attorney and in the Legation’s telegram of April 7, 1930, seem, on their face, to enunciate a very important principle, that is, that the right of American citizens in China to operate motor vehicles may be granted or withheld by the Chinese authorities without question on the part of this Government.
The Department would be interested in a more detailed statement of the Minister’s opinion in regard to the general subject that is to be found in the memorandum and telegram to which reference has been made.
I am [etc.]