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6. The Chinese Law of Nationality. The law re-affirms the old claim of the Chinese Government that all persons born of a Chinese father who was a subject of China either before or after his death, and all persons boru of a Chinese mother when the father is unknown or has no nationality are subjects of China whether born within or without the Empire. (Article 1.)
Articles 3 to 10 deal with the acquisition of Chinese nationality.
Articles 11, 17, 18, deal with the procedure necessary to abandon Chinese nationality; but the point which concerns Anglo-Chinese is chaper 5 (special rules for those who have abandoned Chinese nationality without sanction before the enforcement of the law.) Rules 1 and 2, prescribe the means by which nationality may be abandoned.
In so far as they admit the possibility of such a proceeding, the rules mark a great step in advance. I think that any Chinese who desires formally to renounce his Chinese nationality should be encouraged to do so; it will simplify matters enormously, and the question of double nationality will become cousiderably less complex. Dr. Ho Kai, C.M.G., desires to renounce his Chinese nationality, and the reply to this point in the despatch should be that the Secretary of State fully appreciates his intention, and that he and others should be encouraged to abandon Chinese nationality.
7. As regards Sir F. H. May's request for instructions as to what action, if he should take in the issue of certificates to persons other than residents in the New any, Territories, or children of immigrant parents, I see no reason to interfere with the present arrangements; even if his view of the decision as to the New Territories were correct, these other classes of Anglo-Chinese are unaffected by it.*
8. I quite agree with him in thinking that it is very desirable to induce the Chinese Government to recognise some stage. in descent at which it will withdraw its claims to regard Chinese born in Hong Kong as Chinese subjects, though in view of article 1 of the law I think it very unlikely that the Chinese Government will
consent.
Minutes.
The Law Officers advised that the natives of the new Kowlooo territory were British subjects, but it was not deemed expedient to say anything to the Chinese on the subject at the time. Hitherto both natives of Kowloon and Wei-hai Wei have been deemed by us not to be British subjects when outside those territories. But I should think, if we are to approach the Chinese on this thorny subject at all, the expediency of which I am inclined to doubt, our aim ought to be to assimilate the Anglo-Chinese in Kowloon and Wei-hai Wei to those in Hong Kong, if possible. But it is a very thorny question, and I am rather vague as to the specific suggestion the Colonial Office want us to make to the Chinese Government.
Mr. Hurst.
Foreign Office, August 13 1910.
Mr. Langley,
W. M.
Have you any views as to the opportuneness politically of opening this question with the Chinese Government at the present time?
L. M.
The Chinese are very obstructive just now, perhaps even more than usual, but it is rather the provincial authorities than the Central Government who are to blame. In any case, it seems to me, and the department whom 1 have consulted agree, that this is one of those questions where only the man on the spot can judge when he can best approach the Chinese Government, and that he ought to have absolute discretion to open the discussion with them when he considers the moment opportune.
W. L.
Mr. Hurst.
L. M.
• Theoretically China could claim them as her subjects, since Chinese nationality is indelible. Practi- cally she acknowledges them as British subjects.
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There are two points on which I should like some further enlightenment :- (a.) It is suggested that the natives of Kowloon stand on the same footing as the natives of Wei-bai Wei. I have always been under the impression that Wei-hai Wei was a place of which His Majesty's Government had merely taken over the administration of the territory-like Cyprus-and therefore the natives, when outside the limits of the area, were Chinese and nothing more, whereas Kowloon has been added to, and become part and parcel of the colony of Hong Kong for all purposes, so that the natives have become British subjects, whether within or without the area. Unless I am wrong as to this, I think the natives of Kowloon and the natives of Wei-hai Wei cannot be treated on the same footing.
(b.) In many of the papers relating to Liang Tou and in the minutes thereon it is said that natives of Kowloon residing there at the date of the cession possess a double nationality. How did double nationality arise? If Chinese nationality before the cession was due to connection with the territory ceded, why did it survive the cession? If it was due to parentage, why did the cession confer British nationality? I feel it is quite likely that there are reasons which are not present to my mind, but the subject is complicated, and I think it would be useful to have the reasons set out.
C. J. B. H.
The point involved was raised and discussed in the minutes on papers 869 and 1962/10, and especially in that by Sir E. Davidson on the latter.* It will be seen that I raised the very same point that Mr. Hurst does. There is some force, I think, in what Sir E. Satow says in the last paragraph of his despatch No. 410 of the 29th November, 1905 (3007). It was decided not to say anything to the Chinese Government about the national status of the natives of the new territory. That correspondence was dealt with in the Political Department, and the Treaty branch had nothing to say to it till the murder case arose.
It would be rather anomalous that the natives of the new territory should be in a better position in regard to immunity from Chinese allegiance when in China than the various categories of Anglo-Chinese of Hong Kong.
Now, however, that Chinese law recognises that in certain circumstances Chinese nationality may be lost, though hitherto it has been regarded as indelible, it may be desirable to formulate some specific proposal to the Chinese Government to regulate the status of these nondescripts which is now chaotic.
Since the receipt of this Colonial Office letter, Mr. Max Müller's despatch No. 240 has come in, and is put up for consideration. Sir J. Jordan is now on leave in this country. I don't know whether it would be worth while having a departmental conference with him and someone from Colonial Office.
Foreign Office, August 20, 1910.
W. M.
* According to the view of the Law Officers (and I think that technically their view is sound) the territory of Kowloon, which was ceded to Great Britain for a term of ninety-nine years, became during, and for, that term au integral portion of the British dominions. It is a peculiar and novel form of tenure; but, applying recognised principles to the new conditions, I think that while the term lasts the territory is just as fully part of the British dominions as if (for instance) it had been conquered and annexed, and we had given an undertaking to restore it to China at the end of uiuety-nine years.
"It follows, in my opinion, that in contemplation of English law anybody born in Kowloon during the term of ninety-nine years-rebus sic stantibus, of course-is a natural-bom British subject jure aoli, though such persons may, in contemplation of the law of their parents' country of origin, have a second rationality (Chinese or other) which in that country of origin will prevail.
"Technically, also, I think that on the cession of Kowloon, and in the absence of the reservations which are reasonable and usual on such occasions, the Chinese inhabitants of Kowloon became, at any rate so long as they remained in Kowloon, British subjects. At the same time it was, I think, unusual not to have given then: an opportunity of opting for British nationality or removing from the territory of Kowloon within (say) a year. To bold that the very day after the cession every Chinaman in Kowloon without any choice, or knowledge even, on his part of the antecedent circumstances became a British subject seems to me unreasonable and unusual although it may in strict law be technically arguable and defensible. This is especially so in a case of a peaceful cession by agreement as distinguished from a conquest by force of arms, although legally the technical result of either operation on the status of the inhabitants may be the same.
.. W. E. D. "Foreign Office, January 20, 1910."
† Extract from Sir E. Satow's despatch above referred to:-
"Where cession takes place it is assumed that the inhabitants lose their nationality, but the modern practice is, I believe, to provide in treaties of cession that natives who wish to preserve their nationality must emigrate. In the case of the new territory, which is only leased, not ceded, it was stipulated that the inhabitants should not be expelled, and the natural inference would be, I venture to think, that they did not lose their Chinese nationality."
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