117
Vice-Consul
31, 1922.
[F 688/24/10.]
Consul-General Skrine, November 15, 1922.
[F 1672/24/10.]
Memorandum by
Vice-Consul Harding, March 16, 1923.
[F 2199/24/10.]
20
tration and had probably welcomed the British action as a defence against Russian aggression. But now all that they saw was the abuses and the offence to China's sovereign rights. A system of joint registration was at that time in force, but in 1920 the friction over registration of British subjects produced almost a deadlock, At this juncture was issued "The China (Kashgar) Order in Council, 1920, laying down a procedure for registration which did not contemplate joint action by the Chinese authorities. The consul-general had already issued instructions to the Aksakals, which they interpreted as meaning that they were to flout and oppose the Chinese authorities and register as many British subjects as possible, and, most unfortunately, the Turki Persian and Urdu versions of Harding, October the extracts from the new Order in Council, circulated by the consul-general to the Aksakals for their guidance, were so faulty as to give the impression that His Majesty's Government were holding out enticements to Chinese Memorandum by subjects to assume British nationality. This all combined greatly to inflame the suspicions of the Chinese authorities, who retaliated by imprisoning large numbers of individuals who claimed to be, or had been, registered as British subjects. In 1922 Mr. Skrine became consul-general at Kashgar. He immediately issued orders to the Aksakals that the lists of British subjects were to be drastically cut down by the cancellation of all certificates granted on insufficient grounds and by the admission only of those with unimpeachable claims to British nationality. Colonists who had severed their connection with India were encouraged to assume Chinese nationality and the claim to register and protect Afghans, which had given rise to much friction, was tacitly abandoned. The consul-general further proposed, subject to the condition that no person should be victimised for having claimed British nationality, that lists of all persons registered as British subjects should be submitted to the Taoyin every year, and that the Taoyin should in turn submit a list of all those whose right to be so registered was disputed, these disputed cases to be the subject of joint investigation. The Government of India approved these proposals, which were duly communi- cated to the local authorities in Sinkiang. They replied on the 17th May, 1926, accepting the proposals in principle, subject to adjustment of certain minor details, and on the 14th February, 1927, the consul-general sent a reply meeting the Chinese on these points. The time occupied by these negotiations was not due to any obstruction, but solely to the slowness of communications between Kashgar, Peking, India and London. In the meantime, however, the action of the consul-general in abandoning an untenable position before negotiations had begun yielded most favourable our relations with Gillan to Govern results. In 1926 Major Gillan was able to report that
the Governor and the Chinese officials continue to be most satisfactory, and. in actual practice, the latter do not raise any unnecessary difficulties in the disposal of cases. They have not, either during my term of office or that of my predecessor, disputed any claim of His Britannic Majesty's consul-general to exercise jurisdiction on the grounds that any particular person was a British subject."
To Sir R. Macleay, No. 788, October
3, 1923.
[F 2855/24/10,] Consul-General Gillan to His Majesty's Mini- ster. September 2, 1926.
[F 5494/24/10.]
Consul-General
ment of India, February 14, 1927.
[F 3686-629/19.]
Acting Con-l-
General Brenian, July 4, 1927.
"
The consul-general's reports which have reached the Foreign Office during 1927 indicate that Sinkiang continues to be perhaps the only place in China where our relations with the Chinese authorities are on a satis- factory footing.
(L
32. In January 1927. His Majesty's Government included in the treaty alteration proposals communicated to the Chinese Governments then having their seats at Peking and Hankow, a somewhat cryptic offer to recognise a reasonable Chinese nationality law." This has not been followed up in any way until a recent very able despatch from His [P 6818/6813/10.] Majesty's acting consul-general at Canton led to the present exhaustive examination of the whole subject. This examination has shown that the policy of His Majesty's Government in this matter for the past 60 years has been founded on a long series of misunderstandings. The root of most of these misunderstandings was, firstly, the erroneous belief that the Costume Regulation was a modus vivendi, negotiated with the Chinese Government, and secondly, ignorance on the part of British officials in China and the Colonies concerned of the principles of international law applicable to dual nationality. The belief became firmly rooted that His
21
Majesty's Government had a perfect legal right to protect Anglo-Chinese in China, and that the objections of the Chinese authorities were factious and unreasonable. The wording of Sir E. Hornby's instructions, which governed procedure from 1867 to 1904, was particularly calculated to convey the idea that, in refusing to protect Anglo-Chinese of the first generation, His Majesty's Government were merely waiving the exercise of an undoubted legal right. The views of Hong Kong, and still more of Singapore, were thus coloured by the belief that His Majesty's Government, to suit their own purposes and to save British consuls in China from an irksome duty, had deprived Chinese born in those Colonies of their undoubted rights as British subjects. Such unjust treatment, it was held, would undermine the loyalty of these Chinese British subjects. In Hong Kong, and still less in Singapore, it was never realised that the exact converse was the truth; that His Majesty's Government has strained and broken the law in order to extend exceptional treatment to these Anglo- Chinese, thereby incurring the hostility of the Chinese authorities, with consequent grave injury to genuine British interests in China. There are many young men in England who happen to have been born in the Argentine. If they do not wish to submit to Argentine law and perform their military service, they remain in England. "It is difficult to see the injustice of suggesting that Chinese in the Straits Settlements should similarly accept the consequences of their dual nationality.
33. The Chinese are past masters in the art of using the foreigner as a catspaw. From the earliest times the pernicious practice grew up in Singapore, and later spread to Hong Kong, of granting protection certifi- cates to Chinese returning to their native land. It is fair to say that the records of the past sixty years show that the Colonial authorities never realised to what use in many cases these protection certificates were put. Until very recently the doctrine of responsibility was the foundation of the system under which China was governed. A Chinese official could do as he liked so long as his people did not break out in rebellion or riot, and so long as he did not involve his superior officers in difficulties especially difficulties with foreigners. A district magistrate who involved the Taotai in a dispute with the consul was liable to be immediately cashiered without any reference to the merits of the case (see, for example, Appendix I, cases Nos. 8 and 21). A Chinese armed with a protection certificate, whether really a recognised British subject or not, was thus able to ride rough-shod over his neighbours, and no one dared touch him, for he only had to claim British nationality to bring the British consul, with threats of force and gunboats, on to the scene (see Appendix I, cases Nos. 2 and 3). In course of time, as China grew politically weaker, the claim to Christianity came to have a like potent effect; the fact that German and French missions supported the outrageous claim of their converts to immunity from Chinese jurisdiction was held to be justification for the decision of His Majesty's Government in 1904 to extend British protection to Anglo-Chinese of the first generation (see paragraph 21 (2)).
34.
118
As explained in paragraph 24, the Chinese nationality laws of 1909 and 1914, which are analysed in Appendix II, made no change in the law, but merely clothed in modern dress the principles which the Chinese Government had always endeavoured to maintain. The Chinese law is and always has been based on the jus sanguinis. In this it resembles, though in practice it goes beyond, the French law, but differs from the English common law, which is based on the jus soli. Perhaps, for that reason, British officials in the Far East have brushed it aside and denounced its unreasonableness in language the severity of which it is Governor Sir L. N. sometimes difficult to justify. As late as 1922 the authorities at Canton Guillemard, were criticised on the ground that their adherence to the jus sanguinis April 14, 1922. belied their claim to be a progressive and enlightened Government and [T 7455/598/310.] they were exhorted to abandon this obsolete fetish of the Chinese Empire. The Cantonese authorities, however, did not fail to observe Minister for
Foreign Affairs and to point out to Consul-General Jamieson that the principle of the c. c. Wu to Con- jus sanguinis received a greatly extended application in English law by sul-General the Act of 1922 :
Jamieson, Sep- tember 7, 1921.
"The English common law was based on the jus soli, but it has been [T 12846/2384/ changed by statute from time to time by incorporation of provisions based 310.1