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To Sir Thomas Wade, No. 67, May 20, 1879.
10
You will observe that in his minute, copy of which is appended to the enclosed printed memorandum, Sir Thomas Wade proceeds on the assumption that such persons are as much under the protection and control of the British authorities in China as any other British subjects. On the other hand, he stated in his despatch above referred to that the Chinese Government emphatically deny the right of any person of Chinese descent to any other national status than that of his Progenitors.
The question of the right of Her Majesty's Government to protect such persons while they are within Chinese territory as against the Chinese authorities who claim their allegiance is discussed in the printed memorandum enclosed, and I am directed by Lord Salisbury to request that you will favour his Lordship with your opinion thereon and as to the necessity of a convention with China to settle the controversy. and of the sanction of the Chinese Government to any modifications in the existing arrangements, as published in Sir R. Alcock's notification of the 6th October, 1868 (namely, the Costume Regulation).
12. On the 17th November, 1879, the Law Officers reported as follows:-
That, in our opinion. Her Majesty's Government ought not to insist upon extending British protection to persons of Chinese descent whilst they are within Chinese territory.
That, as a matter of policy, we take the liberty of suggesting for your Lordship's consideration that, as the parents of these persons came for their own purposes within British territory and the persons themselves go into China for objects of their own, they have no special claim for British protection, and the assertion of the right to protect them will lead to great complications and difficulties.
We are therefore of opinion that the circular of Sir Rutherford Alcock may with advantage be withdrawn, and that the Chinese Government, with whom no convention seems to us necessary, should be informed that the circular has been withdrawn."
The action proposed on this report was that "a despatch be at once drawn up to Sir Thomas Wade, embodying the opinion of the Law Officers, with instructions to communicate the decision arrived at to the Chinese Government and to Her Majesty's consuls in China previously informing the Colonial Office." But here an extraordinary accident intervened to prevent a final solution of this question, which would have saved Her Majesty's Government from much friction and embarrassment in the ensuing forty-seven years.
13. Sir Thomas Wade's despatch No. 19, of the 9th June, 1879. referred to in paragraph 10, had crossed a despatch from the Foreign Office of the 26th May, 1879, dealing mainly with the Costume Regulation. and enquiring whether he was still of opinion that some modification should be made in the Costume Regulation, and, if so. whether the Chinese Government are disposed to come to a fresh arrangement on the subject." When the report of the Law Officers was received, fully confirming the Foreign Office opinion on the subject, it was decided to wait until a reply was received froin Sir Thomas Wade to the despatch of the 26th May. No reply, however, was ever received, and the whole matter was allowed to drop. The Law Officers' opinion was never communicated either to the Colonial Office or to Her Majesty's Minister in Peking, but was, in effect, though quite unintentionally, suppressed. Three years later, when the subject again came up for consideration. it had become impossible to elucidate the facts from the complicated correspondence of the previous twenty years, and the Foreign Office were governed solely by the mistaken conception of the Costume Regulation referred to above.
14. In the meantime great confusion also prevailed in China. There was no adequate system of communication between the officials serving under the Foreign Office and Colonial Office respectively. The Costume
11
Colonial Office, March 3, 1867.
Regulation had from the beginning been a dead letter. Sir R. Alcock's circulars of 1866 were very contradictory, and were couched in vague, declamatory and inaccurate language. The British consuls, therefore, endeavoured to follow the instructions of Sir E. Hornby (see paragraph 5), which at any rate laid down a clear and simple rule. The Foreign Office, however, appear never to have seen these instructions, and believed that the ruling document was the Costume Regulation. At that time no Governor Sir R. Chinese in Hong Kong had ever laid claim to be a British subject: any such Macdonnell,
would hear with amazement that either himself or his children were no January 4, 1867. longer regarded as owing allegiance to the Emperor of China." The Governor of Hong Kong was greatly alarmed when he heard of Sir R. Alcock's proposals, and fearing the evil consequences which might ensue if this question of nationality were raised and agitated, he urged that all persons of Chinese race should be precluded by Imperial legislation if necessary--from becoming entitled to the rights of British subjects outside the limits of British territory. Anglo-Chinese seeking protection in Consul Pedder to China came solely from the Straits Settlements, and the Government of Colonial Secre that Colony were in complete ignorance of the principles upon which the Singapore, consuls in China acted in according or refusing protection. They Colonial Office, accordingly issued "Protection Certificates more or less indiscriminately February 3, 1860. to any Chinese whom they considered to be a British subject proceeding to Consul Robertson, China. The consuls were involved in constant difficulties and friction Canton, Septem- with the Chinese authorities, because these individuals were indistinguish- ber 15. 1869. able from the native population, went freely into the interior, where they traded, resided and owned land-which by treaty British subjects are October 18, 1865. not entitled to do-and only revealed their foreign status when it suited Sir R. Alcock, them to do so, in order to claim exemption from some tax or immunity from X. 19, February the jurisdiction of the Chinese authorities. The consuls were anxious to 15, 1867. restrict protection to those covered by Sir E. Hornby's instructions; but as Peking, No. 64, they were also instructed that where a British Colonial Government April 30, 1878. vouched for the status of such persons, the consul is not at liberty to dispute Sir Thomas Wade, the authority, the indiscriminate issue of protection certificates created No. 19. June 9, much difficulty and confusion.
+8
↓
October 1868.
Enclosure in
Peking No. 284.
1879.
December 13,
Governor Sir F. Weld, April 11.
15. In 1883 the Governor of the Straits Settlements applied to the Colonial Office, Colonial Office with a view to clearing up the confusion which prevailed as 1882. to the status of Anglo-Chinese in China. He himself, contrary to the view usually held in Singapore, was strongly of opinion that those of the first generation should not receive protection, but that those of the second 1883. generation should receive full protection, subject to dress regulations. Colonial Office, Lord Derby, however, saw no reason for drawing any distinction between June 4, 1943. the first and second generation of those born in British territory. He con- sidered that it would not be possible to deprive any person born in British territory of the rights of a British subject, but that any such person being of Chinese descent should wear a distinctive dress if they wish to receive protection and recognition from British consuls in China. The Foreign Office, believing that the Costume Regulation applied to all British subjects of Chinese descent, and that it had been agreed to by the Chinese Govern- ment, concurred in this view. His Majesty's Minister was instructed that Lord Granville "concurred in the view which the Earl of Derby takes of Foreign Offier, this question. and which is practically carried out in the Costume No. 89, June 11, Regulation."
18H3.
1996. December 26,
16. Two years later Mr. (afterwards Sir Nicholas) O'Conor attempted Mr. O'Conor, No. to unravel the tangle. Citing Lord Clarendon's despatch of 1865, Sir R. 1885, Alcock's circulars of 1866, the Costume Regulation of 1868 and Sir E. Hornby's instructions of the 1st January, 1867, he pointed out that the effect of all these was:—
(1.) That His Majesty's Government had laid down that Anglo- Chinese of the first generation were not entitled to protection in China.
(2.) That in their despatch of 1883, referred to in the preceding paragraph, the Foreign Office had fallen into the error of supposing that the Costume Regulation applied to Anglo- Chinese of the first generation, whereas it was evidently exclusive of that class.
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