R
29366/11
No. 63A.
(DOMINIONS: General.)
FOREIGN OFFICE to LAW OFFICERS.
[Status in exterritorial countries of persons born out of wedlock: Cases of William Thom and Vincenzo Grech.]
GENTLEMEN,
Foreign Office, December 10, 1906.
I HAVE the honour, by direction of the Secretary of State for Foreign Affairs, to transmit to you herewith various papers, as noted in the accompanying list, relating to the status in countries where His Majesty exercises extra-territorial jurisdiction of persons born out of wedlock but legitimated by the subsequent marriage of their parents. Cases of this kind arise from to time where the father has preserved a Scottish or Maltese domicil, and, in the absence of some authorita- tive pronouncement on the subject, prove exceedingly difficult to deal with in practice.
The first case to which your attention is directed consists of an application (Paper A) transmitted by the Consul at Foochow made by a British subject named William Thom, who is of Scottish origin and who has preserved a Scottish domicil, for the registration in the birth register of British subjects of the births of his four children by a Chinese woman with whom he cohabited and whom he subsequently married.
Sir E. Grey is advised that this application should be refused. It was decided by the House of Lords in the case of Shedden r. Patrick (1 Macqueen 535) that the subsequent marriage of the parents of an illegitimate child born abroad of a father who has preserved throughout his Scottish domicil of origin and his British nationality does not confer on such child the national status of a British subject, even though it render him legitimate in contemplation of Scottish law, and also in contemplation of English law for nearly every purpose.
The registration of the births of British subjects abroad is controlled by the Secretary of State under Section 11 of "The Naturalization Act, 1870," and Sir E. Grey is advised that the registration there provided for cannot extend to persons who are aliens in contemplation of English law.
Subject to your concurrence, therefore, he proposes to instruct Consul Brady
to refuse to register the births of Mr. Thom's children.
The further question arises, however, whether there is anything to prevent the children in question being regarded as subject to British jurisdiction in China and as entitled to British protection, and from being registered if their father desires it in the register of British subjects and protected persons--which register is of course quite separate and distinct from the birth register kept by His Majesty's consular officers of the births of British subjects within their respective districts.
The extra-territorial rights of this country in China depend on the XVth, XVIth, and XVIIth Articles of the Treaty of Tien-tsin (Paper B), in all of which the words used are "British subjects." These Articles have never been construed as applying only to those who are British subjects in the strict and limited sense of the term, i.e., to such persons only as would, for instance, in this country be entitled to exercise the parliamentary franchise or to own a British ship. It has always been interpreted as applying to all British-protected persons; such an interpretation is in accordance with the tenour of "The China and Corea Order in Council, 1904 ” (Paper C), where " British subject" is defined to include British-protected person, nor has it ever been contested by the Chinese Government.
There is no exhaustive definition of the words " British-protected person"; by Statute it includes all subjects of the Native States in India (53 & 54 Vict., cap. 37, sec. 15), and by usage it covers all the inhabitants of British Protectorates and other territories which are technically not part of the "British dominions," though in substance they are to be regarded as appanages of the British Empire.
covers every one who, with the In reality the term " British-protected person sanction of the Secretary of State, enjoys British protection; and the limitations on the of the Secretary of State to grant British protection are imposed, not
power
(21262-2.) W't 96-181. 25, 9/11. D&S.
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