Circular No. 13.
SIR,
PEKING, November 26th, 1866.
With reference to my Circular No. 9 of the 16th of June doubts have arisen first as to the protection to be afforded to persons of Chinese race naturalized in British Colonies when they return to Chinese territory, and secondly to those who have become British subjects by the transfer of the Island of Hongkong and its adjacent dependency of Kowloon, or British born subjects natives of the Straits Settlements.
In regard to the first of these classes the Earl of Clarendon in a despatch of the 11th of December 1865, on the subject of extradition, observed that "children born in Hongkong of Chinese parents subjects of the Emperor though regarded generally as British subjects by reason of their place of birth, could not be held to be British subjects against the Chinese Government so as to secure them in China the privileges of British subjects."
On the question of protection therefore as regards all (naturalized) British subjects, whether born in Hongkong or the Straits Settlements, of Chinese parents subjects of the Emperor of China, the decision of Her Majesty's Government leaves no room for doubt.
But any persons, whatever their origin, whose permanent domicile at the time of the conclusion of the Treaties whereby Hongkong and subsequently Kowloon were ceded to the Queen, was fixed in either locality, became in fact British subjects by the transfer of territory to the Crown, as likewise any children born to them before or after the cession of the Island of Kowloon and are entitled to our protection in China as elsewhere. No question can arise with respect to naturalized British subjects as the 10th and 11th Vict. Cap. 83 enacts that the 8th and 9th Vict. Cap. 66 does not and shall not extend to the Colonies, and the same act confines the power of Colonial Legislatures to grant of naturalization to enure only within their respective jurisdictions, and therefore the privileges conferred by Colonial naturalization do not extend beyond the limits of the Colony. Hence a Chinese naturalized in Hongkong or the Straits is a subject of China the moment he steps across the boundary line.
But a difficulty exists in reference to those who, Chinese by race, have become bonâ fide British subjects by cession of territory or birthright. Chinese in every other sense, in race, language and dress, it is impossible to deny that this outward identity when they enter the Chinese dominions is a fruitful source of misapprehension and deception. When they return to China which they always regard as their country, they are accustomed to settle or to carry on business in the interior where they are under no supervision of a British authority, and, theoretically exempt from any Chinese jurisdiction owing to the extraterritoriality conceded by Treaty to British subjects. Their position is perfectly anomalous. They live with their families who have never left the country, enjoy all the rights and privileges of Chinese subjects, buy land and houses, take part in the local administrations of their district, and sometimes conspire with secret societies against the Chinese Government to its manifest peril, and the disturbance of peace and good order in the realm. They are quite undistinguishable by the Native authorities from all other Chinese the subjects of the Emperor, and only discover themselves when, charged with some offence, they are arrested and held amenable to Chinese laws; and then only they claim exemption as British subjects.
Such a position as this cannot be recognized on any principle of justice or sound policy. Treaties have carefully defined the respective rights of British and Chinese subjects, and it has been justly urged that neither side can claim to exercise the rights reserved to both. Consequently a Chinese claiming to be a British subject in Chinese territory must be bound by the British side of the Treaty, and can no more go into the interior without a passport, or reside and hold land therein than a British subject, for if so, he has a beneficial interest not enjoyed by British subjects, and larger and superior advantages than was contemplated for the latter under the Treaty. Neither party in a word can claim to exercise the rights and enjoy the privileges of both.
The only equitable mode of meeting this exceptional state of things would seem to be in the case of persons of Chinese race who are bonâ fide British subjects, to give them efficient and full protection at the open Ports, when they can establish their rights to register as British subjects to the Consul's satisfaction, and to place some limitation on its extension beyond these limits, because no passport for residence in the interior can be consistently granted. A passport for travelling in the interior to this class is constantly liable to abuse by a more or less permanent domicile in the interior.
To meet this state of things and as far as possible provide a remedy, I have issued a public notification, printed copy of which will be forwarded to you in English and Chinese to which you will give all publicity. It is designed to warn all of Chinese descent who are bonâ fide British subjects, that they have by treaty no right of residence in the interior of China, and if found so domiciled contrary to its provisions, they are liable to be brought to the nearest port by the Chinese authorities as British subjects to be dealt with in accordance with the rules and regulations in such cases made and provided.
With a view to check the abuse it would further seem desirable to limit the operation of the passport, in the case of British subjects so situated, to the time absolutely required by the party for the purposes of his business in the interior.
Your obedient servant,
RUTHERFORD ALCOCK,
H. M's Consul
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True Copy
(True Copy)
I am &c:
(Wm Signed) D. B. Robertson
Colonial Secretary