[Enclosure]
The Secretary of
State to the Consul General at Shanghai (Cunningham)
Washington, April 13, 1933.
Sir: Reference is made to your despatch No.
8715 of January 17, 1933, and its enclosures,35 in regard to the protest
made by Mr. Charles W. Rankin, President of the University of China
at Chen Ju, near Shanghai, against the Department’s attitude on the
question of the status, under the treaties, of schools established
in China by American missionary organizations. With regard to this
matter, the Department had already, prior to the receipt of your
despatch, received by reference from The White House a letter, dated
January 10, 1933, addressed to the President by Mr. Rankin,36 making a similar
protest. With Mr. Rankin’s letter there was also received the
original of your letter to him of January 4, 1933.36
Although the Department has given most careful and sympathetic
consideration to and understands and appreciates Mr. Rankin’s point
of view, it is constrained to hold that his interpretation of the
treaties is not warranted by their texts and is contrary to the
recognized principle that international agreements involving a
limitation upon the exercise of the sovereignty of a state within
its own territorial limits are to be strictly interpreted.
[Page 608]
The only provision in any of the Sino-American treaties which
expressly accords to American nationals the right to establish and
maintain schools in China is contained in Article VII of the
Additional Articles of the Treaty of 1858,37 and that right is
expressly limited to treaty ports, while
the last paragraph of Article XIV of the Treaty of 1903,38 upon which Mr.
Rankin apparently relies for support of his contention, provides
that “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” (underscoring by the
Department.)
Accordingly the interpretation placed by Mr. Rankin on Article XIV of
the Treaty of 1903 to the effect that the authorization contained in
that Article to lease lands and buildings “for missionary purposes”
includes the right to establish schools for the education of Chinese
would be valid only if it could be established that Article XIV of
the Treaty of 1903 had the effect of amending and enlarging the
provisions of Article VII of the Additional Articles of the Treaty
of 1858, which grants the right to establish schools in treaty
ports. However, an examination of the two Articles definitely
establishes the absence of any tenable basis for Mr. Rankin’s
construction, as it is clear that the provisions of Article XIV of
the Treaty of 1903 could not have been intended in any way to affect
the provisions of Article VII of the earlier treaty, but merely
repeated the right granted by Article XXIX of the Treaty of
185839 to “teach and practise the principles of
Christianity”, with certain reservations as to the jurisdiction of
the Chinese authorities over Chinese subjects, and authorized
American missionary societies to lease lands and buildings “for
missionary purposes”.
It is therefore evident that the negotiators of the treaties regarded
the right to establish schools and the right to teach Christianity
as separate and distinct grants, as these grants were expressly
provided for in different articles, one of which authorized the
establishment of schools in a limited area without any reference to
religion or missionaries while the other authorized the teaching and
practice of Christianity and the leasing of lands and buildings “for
missionary purposes” without any reference to the establishment of
schools.
The Department is likewise unable to acquiesce in Mr. Rankin’s view
that Article IX of the Treaty of 1869 between Austria and China40 affords any
support for his interpretation of Article XIV
[Page 609]
of the Treaty of 1903 between the
United States and China. The Sino-Austrian Treaty under reference
was expressly limited in scope to treaty ports and in so far as it
permitted Austrians to establish schools in China, was comparable to
and conferred no greater rights than Article VII of the Additional
Articles of the Treaty of 1858.
It would seem to be clear therefore that, while the treaties
expressly authorize the teaching of the principles of Christianity
and, in connection with this authorization, permit American
missionary societies to use lands and buildings for their missionary
work, the treaties confer no right on American missionary societies
to maintain schools for the combined secular and religious education
of Chinese and the Department is accordingly confirmed in the
opinion which it communicated to the Legation in its instructions
No. 1402 of November 15, 1929, and No. 327 of December 8, 1930. The
Department desires therefore that you return to Mr. Rankin your
letter to him of January 4, 1933, informing him of the Department’s
views as set forth herein and state that the Department cannot
oppose the efforts of the Chinese authorities to require the
registration of the University of China.
Very truly yours,
For the Secretary of State:
William Phillips
