The Secretary of State to Minister Rockhill.
Washington, March 22, 1906.
Sir: I have to acknowledge the receipt of your dispatch No. 196, of January 13 last, requesting the department to instruct you as to the rights of American missionaries in China, belonging to no particular church or missionary society, to acquire property in the interior of China, under the provisions of Article XIV of our treaty with China of 1903.
The department has carefully examined the history of the question of the right which American missionaries, as individuals, possess to [Page 278] acquire and hold property in the interior of China. This right must be sought in the various treaties of the United States with China, or it must be obtained indirectly by an application of the favored-nation clause. An examination of these treaties clearly shows such a right to be legally nonexistent; but with respect to certain localities in China there is, nevertheless, an equitable or quasi legal right based upon custom. As to the rights which American missionaries possess to acquire and hold property for the purposes of their mission, the department holds that such rights are legally, and therefore legitimately, based solely upon Article XIV of the treaty of 1903.
Notwithstanding its adverse opinion on the question of the legal rights of our missionaries, as individuals, under our treaties with China, the department desires to recognize, and does not wish to weaken, any equitable or quasi legal rights which may have arisen from the custom. The fact appears to be that in practice foreigners, nonmembers as well as members of missionary bodies, have purchased land in many instances in all parts of China, and that the Chinese authorities have connived at, acquiesced in, and actually ratified so many such transactions that there is great force in the contention, often made by foreigners in China, that the treaty prohibition against foreigners buying land can no longer be urged in China. These purchases have been made by various railway, mining, and other enterprises; by foreign firms in the interior, for business purposes; and by foreign residents of all nationalities and occupations, for summer homes and for various other purposes.
In meritorious cases, in which the circumstances were such as to give rise to no objection on other grounds than the unwillingness of China to consent to sales of land to Americans in the interior, this department would find great force in the argument that inasmuch as China, through her officials, has in numerous instances permitted the subjects of other nationalities to purchase land in certain localities in the interior, this Government may, with good reason, consider such purchases as precedents establishing the right of Americans, whether members or nonmembers of a missionary body, to make similar purchases.
The department directs your attention to the memoranduma of the solicitor of the department, accompanying this instruction, which shows the origin and development of the rights and privileges of American missionaries from the treaty of 1858 until the present treaty of 1903.
I am, etc.,
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