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Enclosure 11 in No. 2.
Sir H. de Sausmarez to Mr. Max Müller.
Dear Mr. Max Muller,
Supreme Court, Shanghai, April 9, 1910. THE difficulty of answering the questions raised by the Chinese law of nationality is enhanced by the indeterminate state of China's position amongst nations, but, however barbarous she may be, I presume that we do not object to her making laws for her own subjects. At the same time, in view of the treaties and the fact that she does not exercise jurisdiction over the subject of "Treaty Powers," it seems to me that she ought not without consulting these Powers to inaugurate a new departure in respect of such subjects, even though she might claim that they have also a Chinese nationality.
When the Ottoman Government enacted their nationality law of 1869 they addressed a circular letter to the Powers, and I have little doubt that the provisions of the laws were assented to; I have no copy of the letter, and I speak from memory, but the publication of the law in
indicates that it was the "Hertslet's Treaties subject of agreement. It seems to me that the much more complicated Chinese law, some of the provisions of which are certainly open to objection, ought to be the subject of similar action.
In a country of unsettled law, such as China, much must depend upon usage; the usage for sixty years has been to regard persons of double British and Chinese nationality as subject to the treaties which exempt them from Chinese jurisdiction, and place them under British protection in China.
Under instruction from the legation they have been registered as British subjects, a birth certificate from their British birth-place being considered sufficient proof of their British nationality, nor is there, so far as I know, any instance of a refusal on the part of the Chinese to acquiesce in such procedure.
The only treaty provisions which seem to bear on the questions are articles 21 and 22 of the Treaty of Tien-tsin. I believe that no demand has ever been made by the Chinese that a man of Chinese blood, but of British nationality, should be handed over to them under article 21, and there is no doubt whatever, if they made such a demand, that we should refuse compliance. Under article 22 the British authorities have brought to justice British subjects who are of Chinese origin without any protest from China. In the case of the King e. Tseng Tzu Ting, which was a charge of manslaughter tried before me in 1905, the accused being of Chinese descent, the Chinese officials prosecuted before the magistrate and were represented at the trial; they thus recognised that the accused came under article 16 of the same treaty. Every day in Shanghai British subjects of Chinese descent sue Chinese in the mixed court without protest.
There is no doubt then that the present law is an unwarranted invasion of the treaties in so far as it affects Chinese who are at present natural-born British subjects. It seems to me that any person who at present is entitled according to usage to be recognised as a British subject must so continue to be recognised.
Turkey, I believe, is one of the few nations which adheres to the principle of perpetual allegiance, and the Bureau de Nationalité "deems as American citizens Ottoman subjects who were naturalised in the United States before 1869” (“Moore's and International Law Digest," vol. iii, p. 680). Precedent is again here against the Chinese contention.
I think we ought to insist on the proper passports being granted to those who are British subjects.
On the other hand there is no doubt that the Chinese who come and go between a colony and China are often a tiresome lot, and anything that can help our consular officers, and incidentally the Chinese Government, would be satisfactory.
My strong feeling is that the provisions of the law and regulations which leave it to the Chinese to determine whether these men are entitled to British protection or not, are in view of the treaties and the Chinese official character, inadmissible. The special rules 1 and 2 beg the question as to the Chinese nationality of the persons in question, and rule 2 seems to impose upon them the necessity of approaching the authorities of their supposed locus of origin, in order that they should address the foreign consul concerned. The rule is excessively vague and might be construed so as to deprive any person, who has not set the local authorities in motion, during the year after this nationality law has come into force, of the chance of ever having his British
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nationality recognised. More than a liberal and convenient interpretation of them would, I fear, be necessary.
I am afraid the difficulties in the way of a workable arrangement are great, but that is not my business. All I think I ought to point out is that we must be the judges of who are British subjects; and in deciding whom we protect, our consuls must be guided by rules which should be settled between ourselves and the Chinese Government. If such rules can be made it would, as you point out, strengthen the consul's hands in dealing with these questions.
As regards change of nationality in the future I see no reason why we should not concede that the Chinese Government should make a law rendering their assent necessary to a change of allegiance by any person who is at present not a British subject, provided of course that the descendants of British subjects must be free to follow their father's nationality in so far as British law allows.
Sincerely yours,
Minutes.
H. W. DE SAUSMAREZ.
The Colonial Office have sent us Sir F. May's despatch, which I have suggested Mr. Hurst should advise upon, as he went very fully into this tiresome question some years ago and is familiar with it.
I don't quite agree with what is said in the third paragraph of this despatch. It is no uncommon thing with countries where nationality is governed by the jus sanguinis (instead of, as with us, by the jus soli), such e.g. as France to retain their original nationality from generation to generation.
Mr. Hurst with the Colonial Office letter.
Foreign Office, August 15, 1910.
W. M.
I think the Chinese nationality law transmitted in this despatch had better be dealt with separately from the questions arising in connection with Kowloon.
China is a sovereign State, and it seems to me impossible for another Power, even though she may possess extra-territorial rights over her subjects in Chinese territory, to dispute China's right to legislate on the subject of nationality with regard to her own subjects. Persia and the Ottoman Empire have done so, and we have encouraged Zanzibar to do the same.
The foundation of the Chinese law is the jus sanguinis: i.e., nationality of the child follows that of the father. As Mr. Maycock points out, there is nothing unusual or unreasonable in this: it is, in fact, a good deal more reasonable than the English rule of the jus soli under which a person's nationality depends on the place of his birth.
The difficulties arise in connection with individuals born in Hong Kong (so that they enjoy British nationality) of Chinese parents (so that they also enjoy Chinese nationality), and who wish while in China to be regarded as British subjects and not Chinese. The usual rule among civilised States is that where an individual in a particular country possesses the nationality of that country, it prevails in that country over any foreign nationality which the man may also enjoy.
If that rule were applied to these Anglo-Chinese, they would in China all be regarded as subject to Chinese jurisdiction and not to British, and the real question that has to be settled in connection with this new Chinese law is the extent to which His Majesty's Government are willing to admit the operation of the normal international practice.
At present Anglo-Chinese from Hong Kong are divided into four separate categories, and if they have lived in Hong Kong for three years, we claim to exercise jurisdiction over them and grant them protection in China, so that, in fact, we claim to oust Chinese jurisdiction altogether and ignore their Chinese nationality. It is natural that the cases of this character lead to friction with the Chinese authorities; and I gather from Sir H. May's despatch to the Colonial Office that he is not altogether in favour of the continuance of the system of granting protection in China to the children born in Hong Kong of parents who enjoy Chinese nationality and nothing more.
Q
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