307
up our claim.
V.
Children born in Hong Kong of Chinese Subjects.
Governor says British subject to the limitations as in (IV).
Alabaster page 7 (eighthly) apparently says these
are British in Hong Kong and Chinese in China.
Hurst (print 22) says China ought to recognize
these as British if they reside permanently in Hong
Kong. Semble. Not otherwise.
VI. (a) Chinese resident in Hong Kong at date of
Cession.
(b) ditto Kowloon.
Governor says British as to both.
Alabaster says (a) have dual nationality (see page 3 (Firstly) (b) Chinese purely (page 4. Secondly)
Hurst (print page 23) says British.
VII. Children of VI (a) and (b) wherever born.
Governor says British subject to above limitations
on (III).
Alabaster page 6 (Fourthly) says they have all dual nationality.
jd
Hurst (page says Britis
ever intended to abandon them.
(IX) Nothing at present turns on this class.
We need not now I think go into detail on these points. We are only preparing to negociate, and should therefore certainly maintain our claim to II, IV, V, VI, VII, and VIII, though we might be prepared to give way on I and III as suggested by the Governor.
The point that really arises for consideration now is whether we are to adopt the Governor's general principles.
VIII.
Persons resident in New Territories at
date of lease and their children wherever
born.
algree A
Governor appears to say all British.
Alabaster all dual (fourthly).
Hurst print page 6 says all British.
Davidson (F.0.) 23 & 24 of print says. No matter
what International law says we can't prevent China claiming these people as Chinese. He doesn't believe they
ever
In the first place one may note that he appears to think that the jus soli is the sole determining factor in English law (see Despatch 5 iii) . This is not so, the old Common law rule having been
varied by Statute Geo .II c .21. S.1. which Westlake.
(Peace 223) interprets as extending the jus sanguinis to the 2nd Generation of persons born out of the ligeance
There seems therefore no reason why we should shrink
from claiming the children of persons recognised as
British Subjects because they happen to be born out of
the British Dominions.
Secondly there is the proposal to attribute primary importance to the animus manendi. This is of course purely a question of policy, and is, so far as English Law is concerned, an innovation. There is how- ever some evidence that the original intention was that this consideration should have considerable weight.
See
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