In reply to the first application of this sort, from Consul De Lano, at
Foo-chow, I wrote the dispatch of which a copy is inclosed, and in answer to
the second application, from Consul Johnson, at Hankow, I forwarded a
duplicate of the same dispatch.
Substantially, I followed the just interpretation of our treaty-rights in
respect to the question at issue which was set forth in Mr. Low’s No. 40 to
the State Department, and which had your approval; but, in addition, I
expressed the opinion that whatever may be the ultimate decision as to
remanding back to treaty-limits missionaries who have established premises
beyond them, citizens of the United States, wherever they may be in the
empire, are entitled to protection against ill-usage so long as they are
behaving peaceably and lawfully, and that if they transgress law, exceed the
limits of treaty-privileges, or in any way act viciously or offensively,
they are still entitled, under the ex-territorial provisions of treaty, to
be dealt with only by officials of their own nation.
It seemed to me that this point, overlooked in Mr. Low’s correspondence,
above referred to, needed to be insisted upon, in order to prevent the
occurrence of wrongs and hardships, if not of serious complications, which
might arise if it were disregarded, and if our citizens beyond the
treaty-limits were left to the mercies of the native authorities. I was
confronted by the fact that American missionaries, following the example of
the French, and relying upon the immunity accorded to the latter, have
pushed their pious operations to many places in the interior, where they
generally win their way and secure native protection by prudent and
conciliatory conduct; indeed, they are apt to be more discreet
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without the treaty-limits than
within them, and most of the difficulties they have had have arisen at
places where their right to dwell and hold property is undisputed. In the
face of the strictest construction of treaty-provisions, both our Government
and that of Great Britain have extended protection to missionaries dwelling
in the interior.
In a dispatch addressed by Earl Granville to Mr. Wade, Her British Majesty’s
minister in China, in 1871, which was inclosed to Mr. Low in a dispatch from
the Department of State, numbered 53, and dated September 19, 1871, the
following language was used:
“If British missionaries behave improperly, they should be handed over to the
nearest consul for punishment, like other British subjects, as provided in
the ninth article of the treaty of Tien-tsin. If the local authorities
consider that Her Majesty’s consuls do not, in any instance, afford redress
for their complaints, they can appeal through the government at Peking to
Her Majesty’s minister, in the ordinary course of international usage.”
In the spirit of this extract, it may be said that, if American missionaries
do what they have no right to do under our treaty with China, the remedy of
the Chinese authorities is not to instigate or permit their maltreatment or
expulsion by a violent mob, but to refer the case to the nearest consul of
the United States, and, failing the due performance of his duty by that
officer, to appeal the matter to Peking.
It is far from my wish to encourage latitudinarian constructions of
treaty-provisions to our selfish advantage, and at the risk of giving
offense or just cause of complaint to the Chinese; I think we should be even
more careful to be just with this people than with a stronger and more
intelligent one, better able to define and defend its rights. At the same
time there is some danger to be apprehended from a rash recession from
privileges allowed to be enjoyed during a number of years, although there is
no warrant for them in the letter of treaties. The general retreat of all
missionaries, of whatever nations, from the advanced posts they are now
occupying, would probably be hailed by the Chinese populace as a weakening
of foreign influence and power, and might react disastrously upon other
interests than those of religion.
Such a retreat is not likely to happen, unless demanded by the Chinese
government and ordered by the powers with which it has treaty relations.
That the Chinese will sooner or later ask for a strict compliance with the
treaties, as interpreted by the United States and Great Britain, I have no
doubt. They find us imperative enough, usually, in exacting a compliance
with whatever in the treaties is to our advantage; and as they are more and
more annoyed by the missionary question, they may, any day, retort upon us
with a demand for its settlement in a way satisfactory to themselves.
The French are certain to resist such a demand. Their religious interest in
China is greater than their commercial, and they will refuse to contract it
within the boundaries of treaty-ports.
Thus the subject presents grave practical difficulties, requiring wisdom and
forbearance to adjust without a rupture of peaceable relations.
The policy this legation has had to pursue is a temporizing one, and I am
most anxious for such instructions as the Department may think proper to
give for my guidance in the future.
Without engaging indirectly in religious propagandism on the one hand, to
maintain the prestige and opportunities of our citizens on the other, while
dealing justly and honorably by China, is the problem to be solved.
[Inclosure in No. 61.]
Mr. Avery to Mr.
De Lano.
Legation of the United States,
Peking, December 28,
1874.
Sir: I am in receipt of your communication of
the 1st instant, in which you ask what is the policy of our Government
in regard to questions affecting the right of missionaries to reside and
hold property beyond the limits of the treaty-ports, and as to native
servants in their employ; also informing me of your answer to the
request of certain local officials that two of our countrymen, Dr.
Osgood and Mr. Walker, be instructed by you to refrain from visiting
Shao-wu-foo at present, lest their appearance might excite the hostility
of the literati about to convene there; You say
in reference to these matters:
“It is not unlikely that I have held extreme views as to rights of
foreigners, generally, in the country, for I have held that treaties of
peace and amity between two nations confer reciprocal rights, and that
our people should have the same rights as to residence and the holding
of property in the interior as are enjoyed by Chinese subjects in the
United States, and as to the rights of our missionaries inland, I have
held that they may hold property under leases, wherever they may be
fortunate enough to acquire it, and that their right of possession by
proxy, that is, by natives in their employ, and to maintain houses of
worship, book-shops, &c, cannot be doubted. I have claimed for them
the right to travel freely, with passports, in all parts of the empire,
and the right to sojourn a reasonable length of time in any or all
cities they may visit.”
In reply, I have to say that what may be claimed as absolute “rights” by
our citizens in China is to be learned from the express terms of
existing treaties, and the rules established in accordance therewith.
That, as you say, “our people should have the
same rights as to residence and the holding of property in the interior
as are enjoyed by Chinese subjects in the United States,” is a sound
proposition in equity, but will not stand as a guide to official action
in the interpretation and enforcement of treaty provisions.
As a matter of fact, Chinese in the United States enjoy many important
privileges which are not secured to them by treaty, which inure to them
only by virtue of the tolerant and liberal character of our institutions
and people, and which neither our minister nor consuls would be upheld
by our Government in demanding as rights for Americans in China, on the
ground of reciprocal obligation, without such a revision of existing
treaties as would include all such privileges expressly. Thus the
Chinese in the United States can travel, trade, and reside everywhere,
and will be protected without passports and without consular
intervention. They can work on our public mineral domain, and keep all
the gold or silver they extract. They can buy or lease property, build
temples, &c, anywhere without asking permission, having only to
comply with such municipal ordinances or police regulations as apply
equally to our own citizens. These things are not “rights” which they
exercise or claim by virtue of treaty, but privileges freely accorded
them.
We might very well, and I think we should, urge these facts when a proper
occasion offers, as reasons why similar privileges should be granted to
citizens of the United States in China; but at present we can claim no
more than belongs to us by virtue of treaty stipulation, either
according to express terms or by fair implication.
Taking the treaties as our guides, then, it is clear that we acquired no
rights to reside, to do business, to rent houses or grounds, to build
houses, hospitals, churches, or cemeteries, outside of the ports opened
to commerce, and at which we have consular establishments; and the
rights conferred by the treaty of 1858, by operation of the new
concession in treaties with other powers under, the “favored-nation”
clause, and by the supplemental treaty of 1869, are no less or more in
the case of missionaries than in that of traders or any other class. Our
citizens, as such, whether missionaries, traders, or travelers, have the
right to travel anywhere on passports, and that would imply the right of
temporary sojourn at their convenience. They may also “quietly profess
and teach “the doctrines of Christianity, and “shall not be harassed or
persecuted on account of their faith.” Article XXIX of the treaty of
Tien-tsin adds these words: “Any person, whether citizen of the United
States or Chinese convert, who, according to these tenets, shall
peaceably teach and practice the principles of Christianity, shall in
no case be interfered with or molested.” The
supplemental treaty, Article VI, provides that “citizens of the United
States visiting or residing in China shall enjoy the same privileges,
immunities, or exemptions in respect to travel or residence, as may
there be enjoyed by the citizens or subjects of the most favored nation;
“while article YII adds: “The citizens of the United States may freely
establish and maintain schools within the empire of China, at those places where foreigners are by treaty
permitted to reside.”
Unless it can be shown that treaties between China and other countries
than the United States concede rights in excess of those defined in
these citations, we can lawfully
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claim no more than is so plainly set forth. As a matter of fact,
however, while traders of all foreign nations confine their operations
to treaty limits at the ports, the missionaries, urged by convictions of
duty in a sacred cause, have extended their operations much beyond those
limits, and have taken up their residence, effected leases, and
established churches and schools at many places in the interior. This
they have done through sufferance and toleration on the part of the
Chinese authorities, and not by virtue of a clear treaty right. It is
true that some of them refer to the Chinese text of article VI of the
French treaty of 1860, which says, in addition to restitution of or
payment for former possessions of French missionaries, “it is permitted
to French missionaries to rent and purchase land in all the provinces,
and to erect buildings thereon at pleasure.”
There is, however, no such clause in the French text of this article, and
it is the French text which is made authoritative in cases of dispute;
yet the permission assumed to be granted by the Chinese text has been
largely availed of by French missionaries without resistance or protest
on the part of the Chinese government, which has been equally tolerant
of the efforts made by our own and other missionaries to extend the
field of their operations. It would seem that, as this condition of
things has existed for a number of years, our nationals have acquired a
sort of right by prescription to which they are not legally entitled by
treaty. It certainly does not enter into the wish or purpose of this
legation to hamper the wider action on which they have ventured, to
advise any recession from the advanced ground they occupy with the tacit
permission of the imperial authorities, or to prevent the taking of
rightful measures for their protection when necessary; but it is clearly
unwise to encourage such extreme interpretations of treaty-rights as,
urged openly and made a basis of imperative demands, would challenge
contradiction and refusal.
This whole subject was ably discussed in 1870 by my predecessor, F. F.
Low, who reached the conclusion, substantially, that the legal rights of
missionaries were limited by the same restrictions as to residence,
&c., which are imposed upon traders, beyond which, he held, “their
safety must depend upon the good faith and friendship of the Chinese
among whom they live.” Mr. Low also concluded that foreign missionaries
should refrain “from any interference between natives and officials,
except to explain cases where explanation will be of service to enable
justice to be done.”
As one of his dispatches on this subject was addressed to the consul of
the United States at Foochow, you must be aware of his views, which were
fully approved by the State Department, and therefore stand as an
authoritative exposition on the question you raise as to the rights of
missionaries beyond the treaty-ports. That exposition was concurred in
by the British government, whose minister here, under instructions,
informed the consuls within his jurisdiction—
- “1. That under treaty, the British missionary has no right of
residence in China distinct from the right of any other British
subject.
- “2. That the right of British subjects to residence can be
exercised only at the treaty-ports, or in their immediate
vicinity.”
That American and English missionaries have been able, in the face of
this rigid construction of their treaty-rights, to extend as widely as
they have their pious work, and to prosecute it in most cases without
serious trouble, even receiving voluntary protection from the local
officials in some instances, speaks volumes for their judicious and
conciliatory conduct.
My conclusions on the whole subject of your letter may be thus
summarized: While our citizens are not entitled by treaty to reside and
acquire property, build churches, &c., beyond the open ports, they
may freely travel in the interior on passports, may peaceably preach and
practice Christianity, may sojourn a reasonable time where they wish,
and may rightfully claim protection in the enjoyment of these
privileges.
Should they, in addition, succeed by discreet and prudent action in
establishing missions en permanence, relying on
the immunity accorded to the French missionaries in this particular,
they may justly expect that protection for their persons and premises,
and that freedom from persecution for their converts, which is
guaranteed to them in any case, and which on several notable occasions
already has been secured for them through the intervention of our
consuls and this legation, with the approval of the Secretary of State.
Prescription and precedent establish quasi rights
in this respect, which, although not pretended to be conferred by the
letter of treaty, are entitled to official recognition. Besides, an
American citizen in China, so long as he is engaged in peaceful and
lawful enterprises, never loses his right to the protection of his
Government, and if he transgresses law, exceeds the limits of
treaty-privileges, or in any way acts viciously or Offensively, he is
still entitled, under the exterritoriality provisions of treaty, to be
dealt with only by officials of his own nation. For any supposed breach
or excess of treaty-right, he is to be proceeded against before his
consul on representation of the facts in a proper manner by the local
authorities, and not by mob-violence.
If this opinion seems to go farther than my predecessor thought wise, it
is to be remembered that the new usage of interior residence by
missionaries of our nation has been
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several years longer in unquestioned existence
than it had been when Mr. Low was called to pass upon the question.
Since that time, also, our Government, through the State Department, has
approved proceedings of our consuls for the protection of missionaries
maltreated beyond the ports, as in the recent case of the Rev. Mr.
Corbett, whose violent expulsion from Chimi was made by Mr. Sheppard the
cause of a very energetic and successful demand for the arrest, trial,
and punishment of the chief perpetrators of that outrage, followed by
the return of Mr. Corbett under shelter of a proclamation, and the
payment to him of the value of the property destroyed or stolen. In this
case Mr. Sheppard proceeded strictly in compliance with Article XI of
the treaty of 1858, and in conformity to section 20 of the act of June,
1860, for carrying into effect the provisions of that treaty. As you
must be familiar with both, I need do no more than make this reference
to them in reply to your question “what we (consuls) are expected to do
when these rights (of our citizens) cannot be secured, or when the
authorities refuse or withhold redress for wrongs committed.”
It should be understood, however, that any necessary demand for
protection or redress on behalf of our citizens residing as missionaries
in the interior is to be made under and by virtue of the general
guarantee in Article VI of the treaty of 1858, which declares that “all
citizens of the United States in China, peaceably attending to their
affairs, being placed on a common footing of amity and good-will with
the subjects of China, shall receive and enjoy for themselves and
everything appertaining to them the protection of the local authorities
of government, who shall defend them from all insult or injury of any
kind.”
This article can be appealed to without raising the question as to right
of residence beyond treaty-limits, which in no event would be a valid
answer to complaints of violence or insult, and which may safely be left
to stand quietly as it is until the Chinese authorities at Peking shall
themselves raise it in a manner to require definitive settlement. If
they ever do bring it up with any intention to seek the curtailment of
the extra-treaty privileges now cautiously enjoyed, by our citizens, it
will be sufficient for our minister to refer them to Article VI of the
supplemental treaty, and to insist that, so long as French missionaries,
who are far more numerous than ours, are permitted to enjoy the
privilege of residence in the interior, American missionaries shall not
be excluded by an unjust discrimination.
You were quite right in declining to prevent Messrs. Osgood and Walker
from going to a particular place. They are entitled to travel freely on
their passports, and to receive, if they require it, the active
protection of the local authorities. If we should begin to yield to such
requests as that of the timid prefect of Shao-wu-foo, travel by our
citizens in the interior of China, which is a clear treaty-right, might
soon be quite stopped. While, however, no abandonment of such right
should be conceded, our citizens should voluntarily try to avoid
needless conflict or profitless disputes, when patience and forbearance
will suffice to that end, and promote better relations in the
sequel.
I have no doubt that our consuls will also, on their part, endeavor
always to induce, by suasion, the proper action of the native
authorities, independently, before proceeding under the powers conferred
upon them by treaty and statute.
I am, &c.,
M. M. De Lano,
United
States Consul, Foo-chow.
