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when within the limits of the country of their second nationality. The facts to which this rule was to be applied were very imperfectly known, but it was assumed that the Chinese authorities would claim the allegiance of the children of Chinese immigrants into Hong Kong; it was not till a much later date (see paragraph 9 below) that any information was laid before the Foreign Office or the Law Officers as to the Chinese law upon the subject of grandchildren or more remote descendants. In the mean- time, after the voluminous correspondence of the years 1865 to 1869 had become buried away in the archives, a belief grew up in the Foreign Office that the Costume Regulation had been agreed to after negotiations with the Chinese Government; that it had then been settled that any Chinese, who was also a British subject, could, entirely at his own option, claim the status of a British subject within the Chinese territories, or elect to sink his British nationality and reside or travel as a Chinese, provided that in the former case he submitted to discard the Chinese costume; and, further, that on this condition the Chinese Government had consented to waive their rights as regarded persons of Chinese origin born in Her Majesty's Dominions.*
The opinion of the Law Officers quoted in paragraph 7, which had special reference to the proposed Costume Regulation, shows that this interpretation of that regulation is quite erroneous, and that in fact the regulation only applied to those Chinese British subjects whom, by the rules of international law, we were entitled to protect in China. There had, moreover, as will be shown below (see paragraph 16 (4)), been no negotiations on the subject with the Chinese Government, and the latter had never consented to waive any rights which they claimed in regard to persons of the Chinese race.
This mistaken view of the Costume Regulation was embodied in the report of the Naturalisation Commission of 1869, the memorandum by Sir J. Pauncefote of 1879 (Confidential Print No. 5485), and the memorandum by Sir E. Hertslet of 1882 (Confidential Print, No. 7061). Even after the error had been exposed in 1885 (see paragraph 16), these three documents continued to be consulted by, and to mislead, all the authorities in the Foreign Office, who in subsequent years were called upon to deal with the question.
9. In 1872 the Foreign Office learnt for the first time that, not only children but grandchildren and the more remote descendants of Chinese immigrants into British Colonies were in contemplation of Chinese law Chinese subjects. One of the Chinese Ministers, arguing a case with the British Minister, "held out stoutly against recognition of any descendants of Chinese parents, no matter in what generation, as other than subjects Mr. Wade,
of China" (Annex 1, case 3). Mr. (afterwards Sir Thomas) Wade brushed Nos. 5 and 6, this contention aside. The correspondence was referred to the Law January 30, 1872. Officers of the Crown, who gave their opinion that
a person of Chinese origin in China, where the status of a British subject has been properly established and is duly certificated, is bound to obey the laws and regula- tions of the place in which he may be either residing or travelling, but he owes no allegiance to the Chinese Government."
Law Officers, May 29, 1872.
CC
This opinion, the meaning of which is in any case somewhat obscure, has been criticised by Sir J. Pauncefote and others as being founded on the old feudal doctrine of allegiance, which had been generally discarded in Europe about the end of the 18th century. A careful consideration of all the documents, however, makes it appear more probable that the Law
* See memorandum by Sir E. Hertslet of the 20th December, 1882, in Confidential Print No. 7061.
See also a minute by Sir E. Davidson of the 29th June, 1903, at p. 6 of Confidential Print No. 8972:
"The ordinary rule of law is that a person of double nationality is not entitled to protection from the Government of one of the two countries of which he is a subject or citizen while he is within the territory of the other country. The law of that country within which he is for the time physically present is the master law.
If that principle has been in the past, or is to be in the future, modified or qualified as between Great Britain and China, this has only been done in the past, and can only properly be done in the future, by mutual agreement and consent of the two nations concerned."
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