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Sir R. Alcock,
No. 8,
January 17, 1867.
Sir R. Alcock,
No. 8,
January 17, 1867.
Sir R. Alcock,
No. 8,
January 17, 1867,
Sir R. Alcock, No. 254,
6
Chinese declares himself to be a British subject, the nearest British consul was to be applied to before any action was taken by the Chinese authorities upon any charge which might be preferred against him. In this circular Sir Rutherford Alcock referred to these individuals as Chinese who have become naturalised British subjects.'
(3.) On the 26th November, 1866, he issued a further circular to consuls of great length and in such confused and contradictory language that, although the relevant sentence from Lord Clarendon's despatch was quoted in full, it is more than doubtful whether His Majesty's consuls could obtain from it any clear guidance as to who exactly were the "bona fide British subjects to whom they were to give efficient and full protection."
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(4.) On the 28th November. 1866, he issued a notification warning all British subjects of Chinese descent that, if they established themselves in the interior and passed as Chinese, they would be liable to be handed over to the nearest British consul for punishment.
5.
Lord Clarendon's instructions appear to have been communicated to Sir E. Hornby, chief justice of His Majesty's Supreme Court at Shanghai, who was then engaged on the preparation of a volume of instruc- tions explaining to His Majesty's consuls their duties under the new Order in Council of 1865. The volume, when it appeared on the 1st January, 1867, accordingly contained the following passage :
A person of Chinese race born in a British possession of parents who were also born there is undoubtedly a British subject, and so are children born in such possessions of Chinese parents who have been there naturalised, but, as against the authorities of China, children of Chinese parents who were themselves not naturalised or born British subjects are not entitled in China to be considered or treated as British subjects, notwithstanding that they may have been born in a British colony or possession. This rule has been wisely laid down by His Majesty's Government to prevent in China the abuse of the rules of English law on the subject of birth conferring citizenship which would in all probability occur if Chinese subjects could obtain for their children the status of British-born subjects by simply providing for their birth taking place on the soil of a British possession.
Chinese naturalised in a British Colony or possession can claim no rights as a British subject beyond the limits of such Colony or possession, and the moment they enter China their allegiance to the Sovereign of China revives."
These instructions were clearly based on the ruling in Lord Clarendon's despatch, but went a good deal further. The despatch laid down that Anglo-Chinese of the first generation, being in contemplation of Chinese law Chinese subjects, should not receive protection in China. It was silent on the subject of Anglo-Chinese of the second generation, and Sir E. Hornby appears to have assumed that Lord Clarendon's intention was that they were entitled to protection in China, although, in fact, they were equally. in contemplation of Chinese law, Chinese subjects. Sir E. Hornby does not appear to have appreciated the fact that Lord Clarendon's decision merely applied the ordinary rule relating to persons of dual nationality.
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6. On the 6th October, 1868. Sir R. Alcock issued the circular to consuls containing the well-known Costume Regulation. The circular October 13, 1868. purported to regulate the conditions under which persons of Chinese descent, who are British subjects, may reside or travel in China under British protection," and stated that it was left entirely optional to such persons to claim the status of British subjects within the Chinese territories or not as they see fit." After reciting the inconveniences arising
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from the difficulty of distinguishing British subjects of Chinese descent from Chinese subjects, the regulation continued as follows:-
"I do declare and order that all British subjects of Chinese descent shall, while residing or being in Chinese territory, discard the Chinese costume and adopt some other dress or costume whereby they may readily be distinguished from the native population, and I do therefore warn all British subjects of Chinese descent so residing or being in the Chinese Dominions as aforesaid, that, in the event of their infringing or not observing this order and regulation, they shall not be entitled to claim British protection or interference on their behalf in any court of justice or elsewhere in Chinese Dominions."
7.
The issue of such an order had been suggested by certain despatches Canton, Septem- which had been received from His Majesty's consuls at Canton and Amoy ber 15, 1865. in the years 1865 and 1866 dwelling on the evils which resulted from the Enclosure in withdrawal from Chinese jurisdiction of persons who were indistinguish- October 18, 1865.
Peking No. 284, able from the native population. The whole correspondence connected with these despatches and with the circulars issued in 1866 (paragraph 4) 1866. Enclosure
Amoy, June 15, was submitted to the Law Officers of the Crown. On the 28th May, 1867, in Peking No. 3, the Law Officers reported that the circulars were, in point of authority, January 17, 1867. legal, and on the 29th May they further reported as follows:-
"That the further papers before us appear to suggest the following matters for consideration:-
(1.) The case of Chinese residents at Hong Kong or Kowloon at the
time of the cession of these places to Her Majesty,
"We are of opinion that they are entitled to British protection everywhere, even in China, according to the rules and principles of international law applicable to the subject; and that the duty of affording this protection in case of need cannot properly be relinquished or neglected.
The same observation applies to the children of these persons.
"(2.) The case of Chinese who have become domiciled in the ceded
places.
They are not entitled to British protection beyond British territory, and certainly not in the Dominions of the Emperor of China, whose subjects they originally were. Even if naturalised by our colonial laws, such naturalisation would, we think, under the provisions of the 10th and 11th Vict., c. 83, not extend beyond the limits of the Colony.
"(3.) The case of Chinese born in the ceded places but the children of
Chinese parents,
We may assume that the Chinese authorities would claim the allegiance of such persons when in China, and we think it should be conceded to them, and that no claim of jurisdiction over such persons when in China should be asserted or allowed by His Majesty's Govern- ment. It would be quite consistent with the principles of international law to abstain from the assertion of any such jurisdiction."
The Law Officers proceeded to state that it appeared that there were but few Chinese entitled to be ranked as British subjects, and that the imposition of a regulation, such as the Costume Regulation, would be a legitimate exercise of power by Her Majesty's Government.
8. It is important to observe the very close connection between Lord Clarendon's despatch of 1865, the circulars of 1866, Sir E. Hornby's instructions of 1867 and the Costume Regulation of 1868. It is clear that the Foreign Office were endeavouring to apply the ordinary rule of international law, that persons with dual nationality cannot be protected
Law Officers, May 28, 1867.
Law Officers,
May 29, 1867.
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