(No. 6.) Sir,
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Enclosure 8 in No. 2.
Consul Housser to Sir J. Jordan.
Swatou, January 20, 1910. IN my despatch No. 21 of the 15th November last I had the honour to bring to your notice an instance of the difficulties connected with the national status of British subjects of Chinese origin arising from the special rules recently enacted by the Chinese Government on the subject of naturalisation. This question has again been raised by the refusal of the taotai and also of the Viceroy to counterseal a passport issued by me to a registered British subject born in Hong Kong, on the ground that he has never divested himself of his Chinese nationality, as required by the regulations.
The individual in question is the Ma Chin Shuo, alias Ma Li, who was arrested here by the Chinese authorities, detained for several months in the Ch'ao-Yang magistrate's yamén, and, after much correspondence, finally released in December 1908, as reported in my despatches to the legation-No. 11 of the 29th September, and No. 15 of the 23rd December, 1908. On the 11th ultimo I requested the taotai to counterscal a passport issued by me to this man to enable him to travel on business to Kit Yang and other places within this district. The taotai, however, refused to seal this document, and returned it to me with a despatch to the effect that Ma Chin Shuo was undoubtedly a Chinese subject, and as there was no record of his having ever divested himself of his Chinese nationality, as required by the regulations, it was impossible to comply with my request.
I accordingly forwarded the passport to the Viceroy, briefly explaining the circumstances, and pointing out that His Majesty's Government had not accepted the regulations regarding naturalisation recently issued by the Constitutional Government Committee.
In reply to this despatch I have now received a communication from the Viceroy to the effect that he recently received from the board a set of regulations regarding naturalisation, according to which any Chinese subject, of no matter what place of origin, must notify the local authorities of his intended change of nationality, and that such change of nationality comes into effect only on receipt of the sanction of the board. That this Ma Chin Shuo was a Chinese subject was evident from his having petitioned the Ch'ao-Yang magistrate in connection with a certain affair; that no application had ever been received from him regarding his change of nationality, and he could not therefore be regarded as a British subject, as such recognition would be contrary to the regulations. The Viceroy was consequently unable to seal the and returned it accordingly.
passport,
Under these circumstances it only remains for me to report the matter to you. The regulations referred to are in direct conflict with the instructions conveyed in the circular despatch from Ilis Majesty's Minister, dated the 22nd August, 1904, according to which persons born in Hong Kong of Chinese parents, subjects of the Emperor of China, who have resided continuously in Hong Kong for three years immediately previous to the issue of certificate of British registration, are entitled to be registered and protected as British subjects by His Majesty's consulates in China. They also conflict with the instruction conveyed in your despatch No. 15, of the 2nd December last, to the effect that these rules have not been accepted by His Majesty's Government, and have therefore no binding effect as against Chinese registered as British subjects. In his reply the Viceroy completely ignores this aspect of the question, though his attention was specially drawn to it, and it seenis therefore essential that some understanding should be come to with regard to the validity of his instructions.
In the present instance it is of no particular general importance whether Ma Chin Shuo obtains a passport or not, but if the Viceroy's ruling that Chinese, of no matter what place of origin, must first report to the local authorities and obtain the sanction of the board, &c., is allowed to pass unchallenged, there is not one of the individuals now registered as British subjects who would not be liable, in the event of any charge being brought against him, to be summarily arrested and dealt with as a Chinese subject, on the ground that he had never formally divested himself of his Chinese nationality. In the present temper of the Chinese authorities the unsatisfactory situation thus created is not likely to improve, it is rather probable that cases similar to that of Ma Chin Shuo will occur with increasing frequency in the future.
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As the question is one practically affecting a considerable number of Anglo- Chinese who have been registered in this consulate for years past I venture to again bring it to your notice.
Copy of this despatch is being sent to His Majesty's consul-general at Canton.
Enclosure 9 in No. 2.
I have, &c.
P. F. HAUSSER.
Mr. Max Müller to Sir H. de Sausmarez,
Dear Sir Havilland,
Peking, March 14, 1910. WHEN I was recently at Hong Kong and Canton both Sir Frederick Lugard and Mr. Jamieson spoke to me about the refusal of the Chinese authorities to countersign the passports of British subjects of Chinese descent on the ground that the individuals in question had not divested themselves of their Chinese nationality as provided by the new Chinese nationality law.
On returning to Peking I found that Mr. Jamieson bad in the meantime referred the question to Sir John Jordan in a despatch, of which I enclose a copy, and that this despatch had in turn been submitted to the Crown Advocate for his opinion.
Meantime a similar case had arisen at Swatow and had been referred to this legation and my colleagues were asking what attitude we proposed to take up towards this new contention of the Chinese Government. It became evident to me that the question was one which would have to be referred to His Majesty's Government for decision, but before doing so I think it best to submit the papers to you so that the Foreign Office may have the advantage of your opinion to help them in arriving at a decision, more especially as, after carefully studying the Crown Advocate's despatch, I cannot feel in entire agreement with all the arguments contained therein or with his conclusion.
As I understand it, the question is as follows: In March of last year a new Chinese law of nationality, of which I enclose a translation, was approved by Imperial decree. This law, which has never been communicated to the foreign representatives, provides that a person born of Chinese parents in a foreign country is a Chinese subject. According to the Chinese Government, therefore, a person of Chinese descent born in the United Kingdom or a British colony, even though he has fulfilled the conditions of the legation circular of the 22nd August, 1904, cannot be regarded as other than Chinese and is therefore not entitled to British protection if he chooses to return to China, in other words, a case of double nationality. The new law, however, provides a way out of this difficulty by defining in Part III, sections 11-18, and Appendix (A), sections 1 and 2, the conditions under which Chinese subjects desirous to obtain the status of a foreign subject in China can first divest themselves of their Chinese nationality. It is clear to me that persons of Chinese descent born abroad on returning to China may have a double nationality, and it does not seem prima facie unreasonable of China to claim as her "subjects the legitimate descendants whether in the first or a further degree of home-born parents" (Hall, “Foreign Jurisdiction of the British Crown," p. 63), unless and until they divest themselves of Chinese nationality according to Chinese law. All that is open to Great Britain to do in favour of a subject by birth who has chosen to return to his country of descent is to use her good offices in circumstances which, if he were simply a British subject, would justify the exercise of diplomatic pressure" (id., p. 65),
My first impression on reading the new Chinese nationality law in connection with the despatches from Canton and Swatow, was that there was nothing much to object to in the clause regarding the renunciation of Chinese nationality, and it has even occurred to me that by accepting them subject to certain modifications, we might arrive at a solution of the vexed cases of double nationality which occur so frequently under the 1904 rules. These cases cause considerable friction between the consuls and the local authorities, and will manifestly be far more numerous if the new nationality law comes to be applied throughout China; besides, we know that in many cases this double nationality is abused by Chinese who call themselves at one time Chinese and at another British, according as it suits them best. It is evident, therefore, that any step that may render such abuses impossible, will be primá facie
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