393.1164/99

The Secretary of State to the Minister in China (MacMurray)

No. 1402

Sir: The Department has given its careful attention to the subject matter of your despatch No. 1887, dated January 24, 1929,42 with which you transmitted a copy of a communication from an American missionary society in regard to the registration of mission schools43 and the re-registration of real property held by the mission. You expressed the hope in this despatch that the Department would formulate a definite policy with regard to the attitude to be adopted by the Legation and by consular officers with reference to these two questions.

The re-registration of real property held by missionary organizations will be dealt with in a separate instruction.

In reference to the subject of the registration of mission schools conducted by American citizens or organizations in China, the Legation has been informed in previous instructions of the understanding of the Department that the treaties now in force give to American citizens the right to establish and conduct schools without interference from or control by the Chinese authorities. The Department has invited the Legation’s attention to the fact, however, that some American missionary institutions have shown a disposition to adjust themselves to Chinese requirements in such matters, and has suggested that when American consular officers are called upon to exercise their good offices on behalf of American educational institutions, particularly those registered under Chinese regulations, such officers should endeavor so far as may be possible to exert a conciliatory influence in such cases of conflict as may arise. You are referred, in this connection, to the Department’s instructions No. 830 of February 2, 1925 (file No. 393.116/329),42 No. 600 of July 26, 1927 (file No. 393.1164/74)44 and No. 871 of May 23, 1928 (file No. 393.1164 Foochow College/5).45

In formulating a definite policy that shall be adapted to the changing situation in China, it is important to take into account the political and social developments that have taken place in comparatively recent years. When the treaty provisions bearing on the subject of [Page 539]schools were formulated, the education of Chinese children and youths was left to private initiative. In the last two or three decades, however, the National and Provincial Governments have established schools supported by public funds and have promulgated regulations designed to meet the educational needs of the Chinese people as determined by their own authorities. It seems to be a tenet of present day Chinese political belief that the control of the education of the people is a function of the State. The Department understands that laws and regulations bearing on the subject of education have been issued in accordance with this principle. In view of the fact that the treaties do not specifically exempt from Government control schools maintained by American citizens for the secular education of Chinese, and in accordance with the practice generally followed by the Department of relying on express provisions of treaties in asserting the rights of American citizens in China, and in accordance, also, with the principle that international agreements involving a surrender of sovereign authority are to be interpreted restrictively, the Department believes that American citizens and organizations in China would not be justified, under present conditions, in contesting the right of the appropriate Chinese authorities to prescribe the method in which such schools shall be conducted.

This view is supported by the circumstance that the educational institutions in question require the cooperation of Chinese as instructors and students. The right of American citizens to conduct schools for the education of Chinese children is analogous to the right of American merchants to employ Chinese agents in the interior. The Legation will recollect that in its instruction of September 7, 192146 (file No. 164.12/413) on this subject, the Department insisted on the right of American firms to establish business relations with “any and all subjects of China without distinction” but added that this position should not be understood “as indicating any intention on the part of the Department to insist upon the right of American citizens to engage Chinese in employment which would place them in violation of Chinese law”. Being Chinese citizens, Chinese so employed would be, and are, as such, subject to the jurisdiction of their own authorities and laws.

The information before the Department indicates that several important institutions of higher learning maintained by American organizations in China have come to satisfactory understandings with the Chinese authorities and have been registered in more or less strict conformity with the regulations bearing on the subject. These organizations have shown in the field of education the same spirit of adaptation to changed conditions that has been exhibited by commercial organizations following the recognition of China’s customs autonomy [Page 540]through the negotiation of the treaty of July 25, 1928.47 The Department is of the opinion that all American educational institutions in China would be well advised to come to an understanding with the appropriate Chinese authorities in regard to registration.

In expressing these views the Department does not ignore the fact that registration of schools under the existing regulations may necessitate important changes in the way in which they are conducted. In some instances these changes may appear to be tantamount to the abandonment of one or more of the purposes for which a particular institution was established. The injunction against the including of compulsory, or even voluntary, religious courses in the curricula of the schools is a case in point. In this connection, it may be observed that, so far as the treaties are concerned, the right to establish schools and the right to preach Christianity are distinct one from the other.

The Department desires that copies of this instruction be sent to the American consular officers in China for their guidance. They should be advised that, although the Department takes with regard to questions of educational administration the view set forth in this instruction, it desires that the vigilance of its officers in the protection of the unquestionable rights, including property rights, of American citizens and organizations engaged in educational projects in China be in no way relaxed. In some instances that may arise it may be that property owned by American organizations has been leased to Chinese organizations or otherwise placed under the legal control of Chinese citizens. In such cases it will probably be found that the American owners have safeguarded their interests by concluding appropriate contracts, for the violation of which their proper recourse would be to the Chinese courts. In the event of disputes arising, consular officers, if appealed to for assistance, should make careful investigations and do their utmost to see that the American owners are not deprived of their contractual and other legal rights in the premises. The Department has felt no objection to the effectuating of arrangements for registration of American educational institutions through negotiations conducted directly between the American interests concerned and the Chinese authorities. If, however, consular officers are appealed to for assistance in making these arrangements or in connection with difficulties that may arise thereafter, they should exercise their good offices toward effecting equitable settlements.

I am [etc.]

For the Secretary of State:
Nelson Trusler Johnson
  1. Not printed.
  2. For previous correspondence on this subject, see Foreign Relations, 1928, vol. ii, pp. 569 ff.
  3. Not printed.
  4. Ibid., p. 569.
  5. Ibid., p. 570.
  6. Not printed.
  7. Treaty regulating tariff relations between the United States and China, signed at Peiping, Foreign Relations, 1928, vol. ii, p. 475.