The Secretary of State to the Minister in China (Johnson)
Sir: The Department has received the Legation’s despatch No. 44, dated February 21, 1930, enclosing copies and translations of Tentative Regulations for Practitioners of Medicine and Regulations for the Control of Hospitals which have been transmitted to the Legation by the Chinese Ministry of Foreign Affairs.48 The Legation requests the Department’s instructions regarding the applicability of these regulations to American citizens and institutions.
Treaties in force between the United States and China specifically authorize citizens of the United States to establish hospitals at any of the ports open to foreign commerce (Treaty of 1844, Article XVII49). It is the opinion of the Department that, under the extraterritorial provisions of the treaties, hospitals thus established may be conducted by American citizens without obligation on the part of such citizens personally to conform to Chinese laws or regulations. It is the Department’s view, moreover, that, since the Chinese Government both by sufferance and by express provision of treaty (Treaty of 1903, Article XIV50) in the years subsequent to 1844 permitted American missionary organizations to acquire property in the interior “for missionary purposes”, such missionary organizations may assert a right to establish and conduct hospitals as adjuncts to their work wherever it may be prosecuted. So far as concerns therefore the conduct of hospitals in which the members of the staff may all be American citizens, the Department interprets the treaties in force as conferring on the American citizens involved immunity from Chinese regulation. That the Congress would place this interpretation on pertinent treaty provisions may be inferred from the passing of the Act of March 3, 1915, entitled “An Act to Regulate the Practice of Pharmacy in the Consular Districts of the United States in China.”51 The language of this Act warrants the inference that, in the opinion of the Congress, American citizens practicing medicine or conducting hospitals in China are subject in such matters to the jurisdiction of American laws and courts.
However, it may be accepted as a fact that hospitals conducted by American citizens in China enlist the cooperation of Chinese citizens to a very considerable extent either as members of their staffs or as employees. The Department does not assert on behalf of American citizens a right to engage Chinese in employment which would place them in violation of Chinese law. Association with American [Page 542]citizens in the conduct of a hospital would not seem to change the status of a Chinese citizen in the matter of his relationship to the law of China.
In these circumstances, and having in view the desirability of promoting amicable relations between American hospitals, which are usually philanthropic in object, and the Chinese authorities, the immediate problem seems to be one of policy. The regulations for the control of hospitals appear to be, in the main, reasonable and, were conditions in China more stable, the Department would be disposed to suggest to organizations conducting hospitals that they endeavor, as an act of voluntary cooperation, to be guided by the regulations. Under existing conditions, however, the Department believes that its officers in China, when appealed to for advice on the subject, should confine themselves to pointing out the personal immunity that may be claimed by American citizens and the practical considerations that arise from the employment of Chinese citizens. The Department would feel no objection to arrangements relating to the operation of hospitals made by American organizations directly with the Chinese authorities, provided no official commitment prejudicial to the legal status of American citizens were to be involved. Inasmuch as the Legation has received information to the effect that the enforcement of the regulations is to be delayed for the time being, it would appear possible for the Legation to refrain for the present from sending a reply to the note from the Chinese Foreign Office, dated December 9, 1929.53
While American physicians practicing in China may claim immunity from Chinese control under the general provisions of the treaties establishing their extraterritorial status, there appear to be no treaty stipulations specifically authorizing the general practice of medicine by American physicians and many considerations of policy similar to those discussed in connection with the conduct of hospitals apply in the case of physicians as well.
The Department suggests that copies of this instruction be sent to the American consular officers in China for their guidance.
I am [etc.]