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nationality of his parents, and as Hall (5 edit., p. 226) says, "most civilised States, either in remodelling their system of law upon the lines of the Code Napoleon, or by special laws, have since adopted the principle simply or with modifications, giving a power of choice to the child, or else, while keeping to the ancient rule in principle, have offered the means of avoiding its effects."
As regards the subjects of one State, who without its sanction leave it and settle in the territory of another, the feudal principle of "indissoluble allegiance" has been combated by the United States, whose citizens are recruited from the older States of Europe.
The claim now formulated by the Chinese Government, as represented by the Viceroy of Canton, that all persons of Chinese blood are for ever subjects of the Middle Kingdom goes far beyond any known application, even in Russia, where the principle of nationality by descent is strictly adhered to, of the feudal rule nemo potest exure patriam, and could be admitted by any independent State.
Although Hong Kong was ceded in 1842 by the Treaty of Nanking to the British as "a port at which they might careen and refit their ships when required," it was formally recognised in the Treaty of Peking in 1869 as His Britannic Majesty's colony of Hong Kong.
The claim now put formally by the Viceroy of Canton would, if recognised, aunul as regards persons of Chinese race the rights acquired by birth within the territory of Hong Kong or any other British colony as conferred by English law.
The naturalisation of aliens in the British Kingdom is now regulated by the Naturalisation Act of 1870, and in other parts of His Majesty's dominions by local acts or ordinances.
By the law of England, as stated in the Naturalisation Act, an alien who has become naturalised in the United Kingdom is entitled to recognition and protection as a British subject everywhere save within the limits of his State of origin.
Colonial naturalisation is of limited effect, and does not operate beyond the limit of the colony conferring it.
A natural born British subject within the domitions, but the child of one who was then an alien, has thus also to bear the disadvantages of a double nationality when within the limits of his father's State of origin. Viceroy Yuan's refusal to countersign the passports in question is founded by him on "the sovereign rights of China," and without regard, as Mr. Jamieson points out, to China's treaty obligations and their accepted interpretation.
The relations between China and the treaty Powers are very different to the relations of those Powers to each other; that anomoly exists however by treaties which cannot be broken or abrogated piecemeal by Imperial decree merely because they are now felt to be irksome.
By article 1 of the Treaty of Nanking, 1842, British subjects are to enjoy full security and protection for their persons and property in China.
Article 15 of the Treaty of Tien-tsin, 1858, provides that:
"All questions in regard to rights, whether of property or person arising between British subjects shall be subject to the jurisdiction of the British authorities."
It is on this clear statement and recognition of our extra-territorial rights in China that our right to claim as British subjects when in China natural horn and naturalised British subjects of Chinese race, although the same persons might other- wise and in like circumstances, if the relations between China and Great Britain were those between Great Britain and France, be persons with a double nationality, and who on coming to, or on return to, the country of origin of themselves or their parents be subject to its laws.
The inapplicability of Chinese law and custom to British subjects, whether by birth or naturalisation-to anyone, in fact, who has a claim to and has experienced British justice in the King's dominions-is the basis of our insistance on the rights of extra-territoriality.
To the principle that no British subject can, by any length of residence, acquire a domicile in China, it may be taken as a corollary and a fitting rule of practice that no British subject, even if of Chinese race, can unwillingly revert to the Chinese domicile of origin of himself or his parents.
By article 9 of the Treaty of Tien-tsin, British subjects are authorised to travel for their pleasure or for purposes of trade to all parts of the interior, under passports which will be issued by their consuls and countersigned by the local authorities.
By article 14 of the convention relative to Burmah and China of 1894, passports
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written in Chinese and English, and identical in terms to those issued to "foreigners" at the treaty ports in China, were to be issued to British merchants and others wishing to proceed to China from Burmah.
By article 13 of the Burmah-China Agreement of 1594, British subjects and persons under British protection were allowed to establish themselves and trade at certain places under the same conditions as at the treaty ports in China.
The above-quoted reference to "foreigners" in the Burmah-China Convention cannot be taken as a limiting definition of the British subjects to whom passports should be granted under the older treaties.
Although the practice as to the issue by the British authorities of passports to natural-born and naturalised British subjects of Chinese descent has varied with the respect paid to and the latitude formerly allowed to China, as a possible ally, and in accordance with the political exigences of the times, the right to issue passports to travel in China to anyone of Chinese race who was by English law a British subject has never, so far as I know, been abandoned.
Such passports have always been issued at the discretion of His Majesty's consuls, acting under the instructions and directions of His Majesty's Government conveyed through His Majesty's Minister.
The policy of recognising China as entitled to the same consideration as a European State in regard to persons of Chinese race whom she might claim as her subjects is stated in the Earl of Derby's despatch to Her Majesty's chargé d'affaires at Peking of the 17th July, 1877, on which the Peking General Circular of the 12th September, 1877, was founded.
This circular and other instructions of like import, including that counsel of perfection the costume regulations of the 7th October, 1868, were cancelled by the Peking General Circular of the 22nd August, 1904.
This circular, issued it is to be noted after the siege of the legations-au event which, as Hall mentions (5th edit., p. 42), affects our relations with China-- directed that British protection should be afforded to persons born in the colony of Hong Kong of Chinese parents subjects of the Emperor of China, if such natural-born British subjects shall have resided in the colony for three continuous years prior to the issue of a certificate of British nationality.
His Majesty's consuls were further instructed that such British subjects must have registered themselves as such at the nearest British consulate; the form of certificates to be issued by the colonial Governments concerned was also provided for. Under the repealed instructions as to the protection to be given to British subjects of Chinese race, issued on various dates from 1868 onwards, the principle embodied in the Naturalisation Act of 1870 was supposed to be applied, namely, that in their country of origin they could not claim British protection.
During the same period, however, British subjects of Chinese descent were, with reserve it is true, registered as British subjects at the various consulates in China (see, for instance, Peking General Circular of the 4th February, 1878).
When a British subject was once registered at a British consulate at a treaty port it was difficult, indeed impossible, to refuse him thereafter a passport enabling him to travel in the interior.
Constantly recurring difficulties arose in the past as they have in the present case, when British subjects, of Chinese race, by birth or naturalisation came directly from a British colony with the intention of visiting temporarily their homes or those of their ancestors, and without any intention to permanently reside at a treaty port.
Mr. Jamieson, in his final despatch of the 30th November, 1909, to the Viceroy, insists upon the countersigning of two of the passports issued by him, namely, those issued to Yuan Chin-hua, a natural-born British subject, the son of natural-born British subject, and to Ya Tao-sheng, a natural-born British subject, the son of Chinese parents, who has complied with the laws of Hong Kong as to registration as a British subject.
I have the honour, for the reasons give above, to advise that Mr. Jamieson's demand should be supported.
With Mr. Jamieson's further contentions-that internal legislation cannot override treaty provisions, that China should, before carrying such new legislation into force, have consulted the Powers interested, and that such legislation cannot under any circumstances be fully retrospective-I fully agree.
[725]
I have, &c.
II. P. WILKINSON.
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