No. 187.
Mr. Denby
to Mr. Bayard.
[Extract.]
Legation of
the United States,
Peking, March 19, 1888.
(Received May 5.)
No. 595.]Sir: I have the honor to inclose herewith a copy of
a communication sent by me to the treasurer of the Central China Mission. It
aims’ to set out the law of land tenure in China affecting foreigners, a
subject of considerable and growing importance.
I have thought that in its actual form of practical questions and answers it
would be more satisfactory to you than a more elaborate essay might be.
I desire to call attention to the sixth question and answer. That question
involves the right of foreigners to acquire and hold real estate in the
interior. I did not think it proper or incumbent on me to discuss this
subject at length in a paper addressed to a private citizen.
My views, which are those of the Department as far as I know, are plain and
simple.
The treaties per se do not confer on foreigners the
right to settle in the interior and to acquire property. There can be no
dispute on this point, except it be based on the sixth article of the French
treaty of October 25, 1860. The twelfth article of the British treaty of
June 26, 1858, containing the words “or other places,” has received at the
hands of Great Britain the construction that it does not mean unlimited
right to settle in the interior, but applies only to places near the ópen
ports.
[Page 271]
The Chinese text of the French treaty, viz, “It is in addition permitted to
French missionaries to rent and purchase land in all the provinces, and to
erect buildings thereon at pleasure,” has never been adopted under the
favored-nation clause by any foreign power, not even by France as an
intrinsic part of the treaty.
The words quoted are not in the French text in any shape or form, and the
French text is the authoritative version.
But although the power to acquire land in the interior is not found in the
treaties, in point of fact it has been, by custom and toleration, permitted
to many foreigners to reside permanently in the interior and to acquire
land. The missionaries of all nationalities have stations all over China,
and are constantly opening new stations.
As an example, take the city of Peking, the actual seat of government of this
most exclusive court. The eighth rule attached to the customs tariff in
English and Chinese, agreed on in November, 1858, is the following:
Rule VIII.—Peking not open to trade.
It is agreed that Article IX of the treaty of Tientsin shall not he
interpreted as authorizing British subjects to enter the capital
city of Peking for purposes of trade.
Yet, by the tolerance of the Chinese Government, the Hong-Kong and Shanghai
Banking Corporation has a branch bank here. There are also two foreign
merchants here who do a general business, buying what they please and
selling all conceivable articles. One of them has a hotel for foreigners.
Curio dealers come here from time to time, and stay as long as they
please.
On the religious side of the question, we have the noted example that the
Emperor last year, in exchange for the grounds of the old Pei Tang—the
Catholic cathedral—gave to the Catholics a large and valuable tract of land
in the imperial city, close to the prohibited city, to be used for churches,
schools, convents, hospitals, and as the residence of the numerous clergy.
The Emperor gave them, also, 400,000 taels, and, by decree, authorized the
use of the land for the purposes indicated. In front of the new cathedral,
which will be an imposing building, this imperial decree will be chiseled on
a marble slab, which will be erected on the back of a huge marble tortoise,
the emblem of perpetuity.
It is notorious that elsewhere in China official consent has been given to
the acquisition of land and the erection of hospitals, churches, and
residences, both by Catholics and Protestants.
Influenced by these considerations, I am now making an effort to secure more
land for the Presbyterian mission at Chinanfu, in Shantung.
Leaving the treaties out of consideration, what, then, is a fair conclusion
from the actual condition of things in China?
It would seem to be this: The Imperial Government leaves the question of
permanent residence to be solved by the local authorities and the people. If
the foreigner can procure toleration in any locality, and is suffered
without objection to locate therein, he, by degrees, may acquire vested
rights, which his own government and the Imperial Government also are bound
to secure to him if attacked. If the foreigner is unable by tact and
prudence to conciliate the natives so as to secure a permanent residence, he
is not strictly entitled to demand either of Imperial government or the
Imperial Government insistence on a claim which has no treaty basis.
[Page 272]
It is claimed, however, that the rights granted under the treaties have been
enlarged by the usage and tolerance of the Chinese Government, and by
special acts, whereby peculiar rights and privileges in certain localities
have inured to certain foreigners, and under the favored-nation clause
similar rights will be claimed for citizens of the United States.
The Government of the United States does not undertake to control its
citizens in their selection of residences at home or abroad. They have the
right to go where they please. They will, while traveling in foreign
countries, be protected by the Government.
Should citizens of the United States locate in the interior of China, the
Government of the United States could not, as matter of treaty stipulation,
insist that they have the right to acquire real property, except in
localities where this right has been accorded to citizens or subjects of
other foreign powers. In this last case, under the favored-nation clause,
exact equality should be insisted upon.
Should citizens of the United States, with the consent of the authorities and
having complied with the terms of article 12 of the treaty of 1858, acquire
real property, they will be protected in its enjoyment, and wrongs or
injuries done them will be redressed.
When citizens of the United States are permanently located in the interior,
with the consent and acquiescence of the local authorities and the body of
the people, it will be considered proper and advisable for the consular and
diplomatic agents to assist them in any reasonable effort to secure grounds
for the prosecution of their business.
It follows from what has been written that the citizens of the United States
who undertake to settle in the interior must understand that they do so
without any positive treaty sanction. While governmental protection as to
their persons would follow them the world over, the Government does not hold
itself bound to assist them in the prosecution of any business or employment
whose exercise in the given locality contravenes the usage or laws of
China.
The effort for permanent residence in the interior of China and the primary
securing of the right to carry on business must be their own individual
acts.
I have, etc.,
[Inclosure in No. 595.]
Mr. Denby to Mr.
Hykes.
Legation of the United States,
Peking, March 19,
1888.
Sir: I have the honor to submit the following
answers seriatim to the queries propounded by you in your communication
of the 18th ultimo:
First.—By what tenure may citizens of the United
States hold real estate in the open ports, but outside of the limits of
the foreign concessions?
Answer.—The only specific authority to hold real
property in China under the treaties with the United States is found in
the twelfth article of the treaty of June, 1858. “Citizens of the United
States may rent houses and places of business, or hire sites on which
they can themselves build houses or hospitals, etc., at the open ports.”
The “tenure” is by lease. The practice has been to make the lease
perpetual, which practically serves the purpose of a fee simple. Your
attention is called to the first article of the treaty of July 28, 1868,
wherein the Emperor of China reserves the right of eminent domain over
all the lands and waters in China, and the right of jurisdiction over
persons and property within any granted tract of land, except so far
as-the right may have been relinquished by treaty.
The application of what is called the exterritorial rights and
jurisdiction of foreigners is too well known to require further
reference,
[Page 273]
Second.—What are the recognized limits of the
treaty ports within which foreigners have the undisputed right to hold
property?
Answer.—This question might be answered generally
by stating that there are not in all localities any “recognized limits”
of the treaty ports within which foreigners have the “undisputed “right
to hold real property. The twelfth article of the British treaty of June
26, 1858, contains the words “whether at the ports or at other places.”
The words “other places” have been generally construed as meaning places
contiguous to or in proximity to the open ports; such places as Taku,
Woosung, Whampoa, Sicawei, and perhaps others will occur to you as
coming within this construction. I think that each case of attempted
settlement outside of a treaty port would have to be treated on the
peculiar circumstances of location, convenience, and custom.
Under section 3 of the Chefoo convention, which provides that lekin shall
not be collected at the treaty ports, the question of their limits is an
important one to China. It comes up here now and again.
It is now the subject of controversy in Formosa, and it will continue to
vex foreigners for many years to come.
Third.—According to the treaty, what is the proper
legal way for foreigners to proceed to secure titles to such real
estate? Are the various consuls furnished with blank forms of leases
similar to those used by British subjects?
Answer.— The first branch of this question is
answered by article 12 of the treaty of 1858. The practical making of a
conveyance will be hereinafter mentioned. The answer to the latter
branch is: British consuls issue title deeds only for land situated
within the limits of British concessions. All title deeds to property
situated outside of these concessions are issued by the Chinese
authorities. The consuls of the United States have no authority to issue
title deeds to real estate in China. Printed forms of deeds with an
English translation, such as are issued by the Taotai at Shanghai, are
obtainable at the consulate-general, but they are only available for
property within the jurisdiction of the said Taotai.
Fourth.—Is it necessary, according to Chinese law
and the stipulation of the treaties, to have the titles stamped by the
Chinese officials (i. e., the Taotai or
magistrate) in order to have a complete and legal title to the
property?
Answer.—Such a question of law as this can hardly
be answered absolutely so as to apply to every possible state of
facts.
The twelfth article of the treaty of 1858 provides certain conditions
which may be held to be conditions precedent to the acquisitions of
land. Among them is this: That the legal fees to the officers for
applying their seal shall be paid. In the United States a deed would be
good inter partes, at least by estoppel, without
acknowledgment witnessed by a notarial seal. But unless the deed were
acknowledged and recorded, it would not without actual notice to a
subsequent bona fide purchaser be held valid as against such purchaser.
Whether under certain circumstances a court might hold that title passed
without the deed being sealed or stamped by the Chinese authorities I
can not undertake to say. But it may be said with positiveness, as you
suggest, that the want of a seal would create difficulty and confusion.
Prima facie, there is no consummated legal
transfer until the seal has been affixed. As we derive our rights
chiefly from the treaties, it would seem that their stipulations ought
in all cases to be directly complied with, and consequently all deeds
ought to be sealed before possession is taken.
The practice at Shanghai is for the Taotai to stamp all deeds. In
addition a note is made on the deed over the consul-general’s signature
and seal.
I believe the rule in China is, when a native offers to sell his land he
must produce the original or old title deeds. These are examined and
compared with the record of titles in the magistrates office before the
sale can be made.
When land is mortgaged an indorsement setting out the mortgage is
generally made on the deeds, and the deeds are then handed to the
mortgagee to be held by him as security for his lien. You will recall
that this was substantially the common law process for centuries in
England.
It has been superseded in the United States by the system of recording in
the office of the county recorder all deeds and mortgages.
In the United States a purchaser for value would not be affected by an
unrecorded mortgage of which he had no actual knowledge. I presume the
rule would be the same in China. But, I believe, that when the deeds are
exhibited and mortgage liens are found to be indorsed thereon, the sale
can not be consummated until the mortgage is satisfied. I repeat that
these questions of mere law can not be answered positively without
knowledge of the specific facts in the jurisdiction where a system of
equity is co-existent with a system of law.
Fifth.—After a foreigner has secured land from a
Chinese and he wishes to convey it to another foreigner, what is the
proper method of procedure?
Answer.—The universal rule the world over is that
immovable property—land—must be conveyed according to the law of the
sites. Eminent domain and jurisdiction over land belongs to the Emperor
of China, as to all other governments, He has the unquestioned
[Page 274]
right to regulate the mode of
conveyance, and to prescribe what acts shall be evidence of alienation.
The forms used in conveyancing may vary in different localities.
At Shanghai an indorsement of the transfer is made on the title deeds in
Chinese and English, and is duly stamped by the Taotai. A record of the
transfer is, kept in the register of land transfers. Three copies of the
deed are made; one is retained by the Taotai, one given to the vendee,
and one is filed by the consul general.
Sixth,—By what tenure may foreigners hold real
estate in interior places; that is, in places quite beyond the limits of
the open or treaty ports?
Answer.—It has already been stated that under the
treaties there is no authority for foreigners to hold land outside of
the ports except in places contiguous or in proximity thereto.
But if it appears, as has occurred frequently, that foreigners by the
consent of the authorities and people of any locality have permanently
settled in the interior, and have procured the necessary title deeds,
and have had them sealed, under article 12, cited, the tenure thereof
would not differ from that under which land is held at the open ports.
The mode of conveyance would be the same.
Seventh.—May such property be securely held in the
name of a Chinese convert in trust for the missionary society?
Answer.—The subject of trusts is one of the most
difficult. In China it seems to be usual with foreigners, in the
interior at least, to have property conveyed to a trustee, who executes,
as a precaution, a declaration of trust to the cestuy
que trust, which is not recorded. The plan is probably legal.
But the better plan would, in my opinion, be to have the deed made to
the head of the mission in trust for his society, or to the society
direct.
It would be presumptuous for me to undertake to advise my countrymen
whose experience and knowledge vastly exceed my own on such questions as
this.
Eighth.—Should such titles be stamped by the
Chinese authorities?
Answer.—From what has already been said, this
question must be answered in the affirmative.
Ninth.—What plan would you recommend a missionary
society to pursue in getting property in interior places for mission
purposes?
Answer.—The forms to be observed in the
procurement of property have already been mentioned.
Tenth.—As to rules issued by the Yamên to govern
the leasing of land to foreigners, you will find in the fourth volume
Chinese Recorder, page 141, certain rules prescribed by the Yamên. They
have some slight bearing on the subject. I know of no others. These
rules were never acceded to by the foreign representatives.
These so called rules are too lengthy to be copied here, and have little
reference to leasing land.
I am, etc.,
