6
Kowloon,
There are two points in connection with the inhabitants of the leased lands which to my mind call for consideration or reconsideration. The protection of the inhabitants when outside the limits of the colony, and the question whether the inhabitants possess any Chinese nationality at all.
I gather from Sir H. May's despatch in the Colonial Office letter of the 8th August, 1910, that instructions have gone out to Hong Kong that the inhabitants of the leased territory are not to receive British protection when outside the limits of the colony. In my opinion these instructions should be reconsidered.
The leased territory is by the terms of the treaty an enlargement of the colony of Hong Kong, and the inhabitants of the leased territory must therefore stand on the same footing as the inhabitants of Hong Kong. The territory is ceded for 99 years. For the period of the lease the inhabitants lose their Chinese, and acquire British, nationality. At the end of the period if the land reverts to China, the inhabitants will acquire Chinese nationality. I think we are not only entitled, but bound to grant British protection in China to the inhabitants.
The case is to my mind quite different to that of the inhabitants of Wei-hai Wei, because under the lease of that port there was no cession of territory at all the sovereignty remains to China. It is only the administration which is transferred to Great Britain, with the right of jurisdiction except in the walled city. The inhabitants of Wei-hai Wei consequently, like the Cypriotes, owe no allegiance to Great Britain when outside the limits of the territory. The same cannot be said of Hong Kong, and, as I have pointed out above, the leased land of Kowloon is made an extension of Hong Kong, which was ceded to Great Britain.
I think the opportunity offered by the Chinese nationality law should be made use of to get the above instructions withdrawn by the Colonial Office.
[29457]
(No. 240.) Sir,
No. 2.
Mr. Max Müller to Sir Edward Grey.-(Received August 15.)
C. J. B. H.
Peking, July 25, 1910. THE officer administering the Government of Hong Kong has kindly forwarded to me a copy of a despatch addressed by him on the 9th June to the Secretary of State for the Colonies on the subject of the Chinese law of nationality sanctioned by Imperial decree of the 28th March of last year. Doubtless the Colonial Office have communicated a copy of this despatch to the Foreign Office,
Sir Francis May enumerates the classes into which British subjects of Chinese descent are divided for purposes of registration in China, and points out that this new law conflicts, as Chinese law has always conflicted, with British law governing the status of British subjects of Chinese descent. Sir Francis May is apparently not entirely in favour of the principle of giving protection to children born in Hong Kong of fathers subjects of the Emperor of China, and says that cases of disputed nationality concerning this particular class are the most numerous and have given the most trouble.
Article 1 of the new law claims as Chinese subjects children born abroad of a father, himself a Chinese subject, through any number of generations; this goes further than the law of any other country and is quite inadmissible as it stands, and I fully agree with Sir Francis May that as a first step the Chinese Government must be induced to recognise some stage in descent at which it will withdraw its claim to regard Chinese born abroad as Chinese subjects.
My attention was first drawn to this law when I was in Hong Kong and Canton last winter in connection with the refusal of the Viceroy to seal the passports of certain Chinese, whom we regarded as British subjects, but who, according to the new law, were, when in China, Chinese subjects in the eyes of the Chinese authorities. These cases are fully described in Mr. Jamieson's despatch No. 117 of the 12th December, 1909, copy of which I have the honour to enclose, though I must say that I do not agree with some of the arguments employed by Mr. Jamieson in his correspondence with the Viceroy. This despatch was referred to the Crown Advocate for his opinion. I beg also to enclose a copy of his reply, but would point out that Mr. Wilkinson admits that he had not had an opportunity of studying the Chinese nationality law with its provisions regarding the renunciation of Chinese
nationality and that his reply therefore amounts to a mere recapitulation of the practice at various times in regard to the issue of passports to British subjects of Chinese descent and does not deal with the question as to whether, and, if so, to what degree, it might be advantageous to accept the principle of the new law.
A similar case of refusal to counter-seal a passport was reported from Swatow (see enclosed despatch from Mr. Hausser, No. 6 of the 20th January), the reason for the governor's refusal being that the applicant was Chinese by descent, whatever the place of his birth, and that he had not divested himself of his nationality in the manner prescribed by the new law.
These cases at Canton and Swatow appeared to me to provide the "concrete questions affecting British subjects or interests" mentioned in the last sentence of Sir John Jordan's despatch No. 410, of the 10th November, 1909. A careful study of the terms of the new nationality law left me under the impression that there was nothing much to object to in the articles prescribing the steps to be taken by a Chinese subject in order to divest himself of his Chinese nationality, and it even appeared to me that, with certain necessary modifications they might be found to provide a solution of the vexed cases of double nationality which occur so frequently under the system adopted in 1904. Obviously, however, this was a question on which it was necessary for me to be fortified by a legal opinion, before I could submit my views to you, and as for the reasons already stated, I did not consider that the opinion of the Crown Advocate covered the point which I wished to raise, I submitted the whole question to the judge of the Supreme Court at Shanghai.
My letter to him, copy of which I have the honour to transmit, fully explains my point of view and my object in raising the question, both of which were based on practical rather than on legal grounds.
Sir Havilland de Sausmarez's reply, copy of which is also enclosed, was not very encouraging. I am in full accord with certain of his criticisms, as, for instance, when he says that China ought to have consulted the treaty Powers, and come to an agreement with them before issuing a law affecting the rights of the nationals of those Powers. Again, I agree with him that "any person who at present is entitled according to usage to be recognised as a British subject must so continue to be recognised," but it appears to me that this could more easily be assured by accepting the first two of the special regulations, or some modified form of them, thau by refusing to do so.
I would point out that Sir Havilland de Sausmarez writes that "the usage for sixty years has been to regard persons of double British and Chinese nationality as subject to the treaties which exempt them from Chinese jurisdiction and place them under British protection in China.'
Mr. Wilkinson, the Crown Advocate, on the contrary, writes as follows:- "The policy of recognising China as entitled to the same consideration as a European State in regard to persons of Chinese race whom she might claim as her subjects is stated in the Earl of Derby's despatch to Her Majesty's chargé d'affaires at Peking of the 17th July, 1877.”
Or again :-
"Under the repealed instructions as to the protection to be given to British subjects of Chinese race, issued on various dates from 1868 onwards, the principle embodied in the Naturalisation Act of 1870 was supposed to be applied, namely, that in their country of origin they could not claim British protection."
I confess that I find some difficulty in reconciling such apparently contradictory assertions.
Towards the end of his letter Sir Havilland de Sausmarez admits that in deciding whom we protect our consuls must be guided by rules which should be settled between ourselves and the Chinese Government, and that if such rules could he made it would strengthen the consuls' hands in dealing with these questions. Further, he says that he sees no reason why we should not concede that the Chinese Government should make a law rendering their assent necessary to a change of allegiance by any person who is at present not a British subject, provided of course that the descendants of British subjects must be free to follow their father's nationality in so far as British law allows.
In view of the non-committal reply of Sir Havilland de Sausmarez I had intended to leave this question in abeyance till I had had an opportunity of discussing it with
16