Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 7, 1909
File No. 18063/4.
Consul McNally to the Secretary of State.
Nanking, January 13, 1909.
Sir: I have the honor to herewith inclose copies of the correspondence between this consulate, the local foreign office, and the legation in reference to the question as to the present status of Nanking in its entirety as an open port.
The authorities stubbornly contend the territory outside the city walls is alone open to foreign trade, which territory, although not an established concession or settlement, was a matter of official negotiation between a commission representing the British and French Governments and the local Government, in 1865, after the recapture of the city by the imperial troops. Failing to agree, the matter of the concession was transferred to Peking, the matter being finally terminated in 1875, when the Chinese Government reported that the proposed concession had been washed away.
The proposed settlement which the Chinese reported as having been washed away is now being in part utilized by the authorities as a terminus for the Nanking city railway.
I am pleased to report, however, that Mr. J. F. Newman has voluntarily sold his property to the local officials at a reasonable profit, and the matter is closed as far as American interests are concerned.
I have, etc.,
Consul McNally to the director of foreign affairs at Nanking.
Nanking, November 11, 1908.
Sir: Replying to your excellency’s note of the 1st instant, with further reference to the land purchased by Mr. J. F. Newman, an American citizen, on which he is erecting a dwelling house, which land was purchased from Rev. D. W. Nichols, also an American citizen, I have the honor to say that after a careful examination of the deed as recorded in the land record book of this consulate, I find no mention of “for missionary purposes,” or anything that could be construed as having that intent. I am fully convinced that Rev. D. W. Nichols had a right to purchase and hold property, and to transfer the same to Mr. J. F. Newman, and that Mr. J. F. Newman has the same right to purchase property and improve it.
Article VI of the treaty between France and China in 1858 makes Nanking an open port, and while merchants and others were not able to avail themselves [Page 52] of their rights for several years after by reason of the Taiping rebellion, there has been no abrogation of this treaty, and your excellency’s contention that Nanking is interior land can not be admitted, nor is there any established settlement either within or without the walls.
It is a fact that the Japanese are doing business in Nanking without molestation. It is a further fact that my colleagues agree with me that Nanking city is open to foreign trade and that American citizens have an undisputed right to purchase land or houses therein.
With this opinion I would respectfully submit that I am unable to comply with your excellency’s request to instruct Mr. Newman to discontinue work on his building or to turn back the land to its original owners.
With renewed, etc,
Director of the foreign office at Nanking to Consul McNally.
Sir: With reference to the land located near the Lion Bridge inside the city of Nanking, which was unlawfully purchased by J. F. Newman, an American citizen, and upon which he is erecting a dwelling house, I have had the honor of communicating with your excellency three times and explaining the case fully in accordance with treaty.
On the 18th of the tenth moon I again received your favor, in which you inform me that after a careful examination of a copy of a letter from Consul Martin, accompanying the deed of Rev. Nichols, as well as the deed recorded in the land-office book in your honorable consulate, you find no mention of the words “for missionary purposes,” and that the open port of Nanking includes both inside and outside of the walls, for which opinion I am sorry, because of the full understanding and establishment of the treaty of friendship between our two countries, and I am unable to see the reason why your excellency is unable to prevent this unlawful act.
I beg again to draw your attention to the fact that those intending to purchase land at Nanking must apply to the custom taltai through their consul for a deputy to investigate the title and measure of the land, while those intending to buy for missionary purposes must apply locally to the magistrate through the foreign office.
Although there is no mention of “for missionary purposes” in the said deed, we have found the communication of Consul Martin to this office, in which he states that Mr. Nichols leased the land in perpetuity on behalf of his mission, and the deed was forwarded through this office to the local magistrate.
It makes no difference, if the land was bought by the missionary, whether the words “for missionary purposes” was included therein or not; you can not say that it does not belong to the mission. The missionaries who bought land inside the city can only use it for their own mission, no matter how the deed is written. It is impossible for a missionary to transfer the property of their mission to a merchant for any other purpose.
The treaty limits the purchasing of land by foreign merchants to the concession. In article 12 of the treaty between the United States and China in the eighth year of the Chen Fong (1858), Americans are permitted to lease lands in open ports for the erection of houses, etc. Again, in article 14 foreign merchants are allowed to trade and erect houses in the concession. In 1903 the appendix to the treaty between the United States and China a foreigner is not entitled to lease land, build thereon, or conduct any business outside of open ports except for missionary purposes. I beg to say further that under article VI of the treaty between France and China, in 1858, Nanking, Canton, etc., are open to trade only at the ports.
In the thirtieth year of Tao Kwang (—), another treaty was made between England and China which states the same as article VI of the above treaty, in view of which it is absolutely impossible for a foreigner to’gain title to land and build thereon outside of open ports.
Your excellency’s contention that the open port of Nanking is not limited to the inside or outside of the walls appear to me to be contrary to the treaty, and that according to the above mentioned treaties, merchants who want to [Page 53] purchase land must do so in the open port from Li fang Moon to Hsia Kwan, the title deeds for which must be procured from the taotai.
Last year the said citizen, J. F. Newman, fraudulently bought in Han Shi Moon, a piece of land for go-down purposes, which land is outside of the open port. We consulted your predecessor and he was instructed to surrender the land to the former owner.
As Mr. Newman leased the property from the missionary for the erection of a dwelling house, which is contrary to treaty and which our higher authority is unable to approve, you are requested to instruct Mr. J. F. Newman to have the work on his house stopped, and we trust that the matter may be amicably settled.
With regard to the Japanese merchants inside the city, they have been requested through their consul to close their business. You will, however, note that the Japanese merely rent their shops from Chinese, and they can be ordered to vacate at any time.
There is no such law permitting a missionary to transfer the property of the mission to merchants for other purposes.
As far as we can see, the United States is the most civilized nation in the world, the citizens of which must conduct themselves in every way according to law. Now, this merchant comes inside the city to erect a dwelling house in interior land, and he is the first foreign merchant to do so inside the walls.
If we permit him to do so, the people of other nations will do likewise, and I would therefore request your excellency to appreciate my position and the trouble and settle this case in some way satisfactorily to all so that I may avoid the trouble.
I take this occasion, etc.,
Consul McNally to Minister Rockhill.
Nanking, December 5, 1908.
Sir: I have the honor to inform the legation that several months ago the Rev. D. W. Nichols, formerly connected with the Methodist mission at Nanking and now residing in the United States, sold to Mr. J. F. Newman, an American citizen, a plot of land located within the city walls and fronting on the main maloo, on which Mr. Newman is erecting a dwelling house. The original deed of purchase was registered in the land record book of this consulate on May 30, 1903, but to the present writing no further deed has been presented for recording, although I am informed Mr. Newman has paid to Dr. Robert Beebe, Mr. Nichols’s power of attorney, the full purchase price.
I beg to say that Mr. Newman never consulted me as to the legality of his land purchase, nor was I informed of his intention to improve the same until the materials for his building were on the ground and the work well under way.
The local foreign office has lodged a vigorous protest against the purchase of land and the improvement thereof, and in support of their contention declare that the Rev. D. W. Nichols when he bought the land was a missionary and that he bought it for missionary purposes; that the same can not be diverted, through purchase, to other purposes. They further declare that the letter of Consul Martin accompanying the deed sent to the foreign office for stamping states that the property was to be used for missionary purposes.
As the system of writing the officials in English and sent in a Chinese translation was not established in this office during the incumbency of Consul Martin, we are compelled to rely upon the Chinese text, a copy of which, as well as that of the deed, is herewith inclosed. I am submitting also a copy of my last letter to the foreign office under date of November 11 last and their reply thereto of the 30th instant which joins the issue as to whether or not Nanking as a whole is open to foreign trade or only that portion located outside the city walls and designated as the village of Hsia Kuan, which the authorities are pleased to term the “Settlement” although they well know that no foreign settlement has been established in Nanking either inside or outside the city walls.
[Page 54]Referring to that part of the letter from the foreign office of November 30, 1908, which states that notice has been served on the British consul requesting him to have one of his nationals vacate land leased on Yi Fang Moon, my British colleague informs me that not only has he not received any such notice, but that he has no knowledge of any British subject having leased land inside the walls. The Japanese consul informs me that sometime ago he received notice that his countrymen were carrying on business inside the city walls, in violation of treaties, but he gave the matter little attention, as he is also of the opinion that the whole city of Nanking is open to foreign trade.
The authorities are considerably worried over what they term as “the foreign invasion of interior land.”
I would respectfully ask for early instructions in the premises.
I have, etc.,
Minister Rockhill to Consul McNally.
Peking, December 16, 1908.
Sir: I have to acknowledge the receipt of your No. 37 of December 5, in reference to the purchase of a lot of land inside the walls of Nanking by an American citizen from another American, and the protest of the local authorities against the use of said land by the new purchaser on the ground that it was originally acquired solely for missionary purposes.
You request instructions as to the reply you should make to the note sent you by the Nanking foreign office on November 30 last, copy of which you inclose.
The American Government considers that all treaty ports in China are open in their entirety for purposes of trade, and also for residence unless otherwise agreed upon. At Nanking, no concession or settlement having been agreed upon, foreign residents have the right to lease, purchase, transfer, or sell real estate within the whole area of the city, whether they be missionaries or merchants. Your letter of November 11 to the director of the foreign office covers the case. I think you should adhere to the position you have taken in it and not recognize the limitations on treaty rights claimed by the Chinese.
I am, etc.,