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Since the Chinese subjects who have adopted British nationality have not conformed with the regulations and reported their intention, I am unable to go behind these regulations and recognise their act. I have accordingly the honour to return the three passports herewith. Any deliberations that you may see fit to hold with the British Minister at Peking are a matter which concerns your office alone, and have no interest for myself.
I avail, &c.
(Card of Governor-General.)
Enclosure 5 in No. 2.
Consul-General Jamieson to Acting Governor-General of the Liang Kuang. Your Excellency,
Canton, November 30, 1909. IIIAVE the honour to refer to certain red notes which have recently been exchanged between us, having for their subject the refusal of your Excellency to countersign certain passports issued by this office in respect of British subjects, whose ancestors were Chinese.
You say that, according to certain Chinese laws of nationality, promulgated this year, the basis of nationality is the blood of the parents, and that, should such be Chinese, the offspring, even if born on British soil, cannot divest themselves of their ancestors' nationality. It is sought, apparently, thereby to lay down a principle which, in so far as international law is concerned, is to me at least novel, and is not one which, I venture to think, will be endorsed by the treaty Powers interested. Your Excellency must be aware that no internal legislation can override the provisions of a treaty, and China, having bound herself in several treaties to allow the subjects of the Powers concerned to travel to all parts of the interior under passports issued by their consuls and countersigned by the local authorities, she is bound to conform with the obligation thereunder imposed. It is for the Power on whose territory children are born to say on what terms they shall be considered as nationals; the ipse dixit of the Chinese Government cannot deprive it of this undoubted and well-recognised right. And even were this not the case, surely any new legislation of the kind should have been communicated to the parties interested-Government and people-and made the subject of international negotiation. So far as I am aware China has not approached, through the proper channels, any of the British colonies which may be effected by these novel proposals, and they cannot therefore be expected to recognise them.
Moreover, for years past in every part of China bave such passports been countersigned without question, and this consulate-general certainly has received no notification of any intended change of procedure, your Excellency's predecessor continuing throughout the year to countersign as before. It may be competent for China to enact that, henceforward, all those of her subjects, having left their country of origin, and desirous of changing their nationality abroad, must give prior notice to the local authorities, but under no circumstances can it be admitted that notice of this kind shall have a retrospective effect, or that it applies to those born in foreign countries.
In the case of the three British subjects whose passports I had the honour to transmit for counter-signature, I have made careful inquiry into the antecedents of the parties, and I find that-
1. Yuan Chin-hua (Un Kam-wa) was born in Hong Kong of parents of Chinese origin, who were themselves British subjects, having been likewise both born in that colony.
2. Yu Tao-sheng (Yu To-sang) is a British subject, born in Hong Kong of Chinese parents, subjects of the Emperor of China, who has complied with all colonial regulations as to assumption of British nationality by registration.
3. Li Keng (Li Kang) is a Chinese, who has been naturalised as a British subject for some eighteen years; but, as the British Government are not prepared to extend protection to naturalised British subjects of Chinese descent on return to their country of origin, his passport has been cancelled.
The two former passports I accordingly return, with yet another request that they be countersigned in accordance with the terms of the existing treaty between Great Britain and China.
I have, &c.
J. W. JAMIESON.
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Enclosure 6 in No. 2.
Acting Governor-General of the Liang Kuang to Consul-General Jamieson.
Canton, December 16, 1909 (Hsüan T'ung,
1st year, 11th moon, 4th day).
(Translation.)
I HAVE the honour to acknowledge the receipt of your despatch, returning two travelling passports for sealing, belonging to Yuan Chin-hua and Yu Tao-sheng, both of whom you say were born in Hong Kong. I subsequently also received your two notes forwarding passports in favour of Li Jui-Kuang and Ku Yen-ch'en, which you asked might be sealed,
The Naturalisation Regulations have been promulgated by Imperial edict, and all Chinese, irrespective of birth-place, who may wish to change their nationality, must, in obedience to these regulations, report to their local authority, who will obtain the consent of the Board of the Interior before such change of nationality can become effective.
There is no record of such a report having been made by Yuan Chin-bua and the others, and I am therefore unable to take action in their case which would be contrary to the regulations.
To put the matter succinctly, the issuing of regulations is a prerogative of the Chinese Government, and I have no option but to obey them without making the smallest alteration. This kind of limited authority is a matter with which you must be fully acquainted.
I have accordingly the honour to return herewith the four passports in question.
Sir,
I avail, &c.
Enclosure 7 in No. 2.
(Seal of Governor-General.)
Mr. Wilkinson to Sir J. Jordan.
Shanghai, February 18, 1910. I HAVE the honour to acknowledge your despatch of the 11th January asking for my opinion as to the legality of the action of Viceroy Yuan of Canton in refusing to countersign passports granted to British subjects of Chinese descent, under circumstances detailed in Consul-General Jamieson's despatch of the 17th December last, and the enclosures thereto.
His Excellency Yuan's contention is that a person of Chinese race cannot, under any circumstances, be or become a foreign subject save by the permission of the local authorities of the real or supposed ancestral home of the person in question.
The new naturalisation laws referred to in the despatches under consideration have not been forwarded to me, and I have no knowledge of their contents, beyond the statement in Viceroy Yuan's despatch to Mr. Jamieson on the 2nd November, 1909, that "by the custom of China, the nationality of an individual is determined by that of his blood relations, and a sou or grandson cannot change the nationality enjoyed by his father or his ancestors.”
Consul-General Jamieson says that the contention of the Chinese Government, as stated by Viceroy Yuan, is that "Chinese blood" imposes on those in whose veins it flows Chinese nationality in perpetuity,
By Roman law "status was determined by descent (jus sanguinis). The question whether a man was or was not a free man and a citizen of Rome, depended on the condition of his parents; Roman law, however, even under the Empire, would not have claimed, or allowed, as citizens the descendants of a civis Romanus, who had voluntarily joined and become incorporated with a Barbarian horde.
According to the feudal rule, once universal in Europe, nationality depended in all cases upon the place of birth (jus soli).
The common law of England held all persons born under the allegiance and none others, with the apparent exception of children of Ambassadors, to be British subjects.
The strict English rule has, however, by statute, been modified and brought into agreement with the principle that the nationality, while depending primarily upon the place of birth, can on certain statutory requirements and formalities being observed, be acquired or lost, changed or resumed, at will.
As to the nationality of children born of the subjects of one Power within the territory of another, the Code Napoleon provided that a child should follow the
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