893.52/351
The Minister in China (Johnson) to the Secretary of State
[Received June 1.]
Sir: I have the honor to refer to the Legation’s despatch No. 3340 of February 6, 1935, on the subject of the reregistration of land titles at Nanking, and to enclose copies45 of despatches No. 673 of March 28, 1935 and No. 693 of April 26, 1935, from the Nanking office of the Legation, together with the Legation’s instruction of April 3, 1935, and a copy of a letter dated May 3, 1935, from Minister Johnson, now at Nanking, to the Counselor of Legation at Peiping.
With despatch No. 673 Counselor Peck enclosed a copy of the new lease agreement which the Nanking Municipality proposes to issue to foreign holders of perpetual leases. Since the lease agreement contained decidedly unsatisfactory provisions, particularly in that it provided that leaseholders would have to forego unearned increment due to increased value and would apparently have to dispose of the property to or with the consent of the Chinese Government and was thus not in conformity with assurances previously given that American missions would receive titles in all respects the equivalent of those now held (see despatch No. 3340, February 6, 1935), the Legation instructed the Consulate General at Nanking that the new [Page 810] deed form was unsatisfactory and stated that it would appear desirable for American missions to delay the completion of the registration of their title deeds until the essential points involved had been agreed to and the deed forms approved by the Department.
Upon the Minister’s arrival in Nanking later in April he took up the matter of the reregistration of title deeds with the interested Americans and then authorized Second Secretary Atcheson to address a formal note to the Ministry of Foreign Affairs in the matter, as described in Nanking’s despatch No. 693 of April 26, 1935.
The unsatisfactory elements of the new lease agreement are a serious threat to American property rights in Nanking as defined in the treaties. In view of the situation which has developed at Nanking, which may be taken as representative of the general attitude of the Chinese Government towards the question of ownership of property in China by foreign missionary societies, the Department’s definition of the rights possessed by an American mission holding land leased in perpetuity under Article XIV of the Sino-American Treaty of 1903 is respectfully requested.
The essential part of the treaty provision would appear to be as follows:
“Missionary societies of the United States shall be permitted to rent and to lease in perpetuity, as the property of such societies, buildings or lands in all parts of the Empire for missionary purposes …”
Thus, in contrast to rights granted to ordinary American citizens not engaged in missionary work, who may lease in perpetuity only within the limits of areas opened for trade and residence, American missionary societies may lease in perpetuity wheresoever they will in China for missionary purposes.
Some years ago the Chinese Government took cognizance of the statement in this article of the treaty that the right to rent and lease had been granted to missionary societies and not to missionaries as individuals and began to insert in the deeds, at least with the tacit approval of the United States Government, phrases such as “kung ch’an”, “common property”, to indicate that the property so leased was leased by a society for the use of the society and not by an individual.
The Government of the Municipality of Nanking (acting presumably with the knowledge and consent of the Central Government since the regulations under which reregistration of land titles is being conducted received the approval of the Central authorities) comes now to limit more narrowly the right of the missions under this provision of the treaty. In fact, it would appear that this provision of the treaty gives the missionary societies no right whatsoever beyond a perpetual [Page 811] lease to use the property for the common purposes of the society and that, if and when the missionary society no longer desires to use the said land for the common purposes of the mission, then it must sell its right back to the Municipality representing the lord of the soil, receiving for that right merely the original price paid by the society for the land.
There is nothing in the treaty which limits the price which the missionary society has to pay to the original owner and presumably there is nothing in the treaty that limits the missionary society’s right to the purchase of land from the Chinese Government as the lord of the soil rather than an individual owner. There has been no evidence in practice attendant upon the sale of land to missionary societies by Chinese owners indicating that the Chinese Government did not wish the Chinese owner of the land to enjoy any profit that he might make over and above the price at which he had originally purchased the land, through sale to an American missionary society. It would seem that with such limitations as the treaty does put upon the missionary society’s use of the land it is not estopped from disposing of its property to a Chinese citizen at any price that it may be able to get; in other words, it is not estopped from enjoying unearned increment arising out of local improvements. It therefore seemed essential that a further note be addressed to the Ministry of Foreign Affairs, as was done under date of April 26, 1935, reserving to American missionary societies all such rights in connection with transfers of land within the Municipality of Nanking. In view of the apparent intent of the Municipality of Nanking to interpret narrowly the wording of Article XIV of the Treaty of 1903, the Legation will appreciate receiving the Department’s instruction on the points raised by the Nanking Municipality as described herein.
Respectfully yours,
Counselor of Legation
- None printed.↩