109
110
To Sir J.
Walsham, No. 107, April 19, 1886.
Mr. O'Conor, No. 277, December 6,
12
(3.) That His Majesty's Government had given no ruling as to Anglo- Chinese of the second generation (he was, of course, ignorant of the Law Officers opinion of 1879, referred to in paragraph 12), but that Sir E. Hornby had issued instructions that they were to receive protection.
(4.) That Sir J. Pauncefote had stated in his memorandum that the Chinese Government had consented to waive its rights as regards persons of Chinese origin born in British Dominions, on the condition prescribed in the Costume Regulation, but that, in fact, there had never been any negotiations nor agreement on the subject with the Chinese Government, who continued consis- tently to maintain their claim that Chinese subjects could not transfer their allegiance to foreign countries.
Finally, he drew attention to the rapidly increasing number of immigrants into Hong Kong. Lord Clarendon's despatch of 1865 had limited protection to the native inhabitants of Hong Kong at the time of the cession and their descendants. If British protection were extended beyond those limits and granted to Anglo-Chinese of the second generation it will be largely abused and must eventually result in being ineffectual or in raising and fomenting questions which will be a perpetual obstacle to a good understanding between the two countries." Both alternatives of this remarkable prophecy have unfortunately been fulfilled (see para- graph 30).
CC
17. In consequence of this despatch it was decided that the only way out of the difficulties was immediately to negotiate a modus vivendi with the Chinese Government. Instructions containing the draft of a proposed arrangement were sent to Sir J. Walsham, the new British Minister, but during his six years of office he found no opportunity of opening negotia- tions on the subject. Meantime, the dangers that had been so clearly foreseen rapidly materialised, and in 1893 Sir N. O'Conor, who had now returned to Peking as British Minister, urged that the question called 1893. (Confiden- imperiously for solution. He sketched the outline of an understanding with the Chinese Government which he stated was urgently required to prevent the continual recurrence of cases of disputed jurisdiction, which caused much friction at the ports where they arose and the satisfactory settlement of which with the Yamen is peculiarly difficult ; and he requested authority to open negotiations on this basis. By another unfortunate mischance this opportunity of settling the question was let slip. The despatch was mislaid for nearly two years and no reply was ever sent to it. The period of awaiting an opportunity to open negotiations was thus prolonged from 1886 to 1903.
tial Print 7070,
No. 28.)
To Mr. O'Conor, No. 23, February 21, 1894. (Con-
fidential Print 7070, No. 24.)
40
! ་
18. During this period of seventeen years the whole subject appears to have been in a state of complete confusion. The Foreign Office, while not taking any steps to vary or rescind the instructions issued to His Majesty's consuls in China, maintained the attitude that in any case of disputed allegiance the ordinary rule of international law must be applied. Thus, in the case of Wang Ju Yü in 1893, an Anglo-Chinese of the second generation. Lord Rosebery sent the following instructions Mr. O'Conor :—
to
You will doubtless bear in mind that, technically, Wang Ju Yü has a double nationality, and that, though born in a British Colony of parents also born there, neither he nor his father had ever, so far as is known, divested themselves of their Chinese nationality of origin.
Under these circumstances, Wang Ju Yu's British nationality would not avail to relieve him while in China from his obligations as a Chinese subject. He is only entitled to British protection in China in so far as such protection does not conflict with Chinese law.
.L
In the absence of any special arrangement with China, it is, therefore, impracticable for Her Majesty's Government to dispute, from a technical point of view, the Chinese claims to exercise jurisdic- tion over Wang Ju Yü."
+
13
A similar ruling was laid down in 1898 and again in 1901.
To Sir C.
MacDonald, No. 5, Treaty, June 4, 1898,
To Colonial Office, July 1, 1901.
The consuls meanwhile, either ignorant of or not understanding the views expressed by the Foreign Office, continued, in the main, to follow the rule laid down by Sir E, Hornby, but there was great lack of uniformity in the practice of different consuls and different consulates. This was due in part to the continued issue of protection certificates in the Straits Settle- ments, and now also in Hong Kong, and in part to the fact that at ports where the problem was not acute the claims of Anglo-Chinese to registra- tion were not adequately scrutinised. Nevertheless, it became generally recognised that Anglo-Chinese of the first generation were not entitled to protection in China. In 1893, for example, Sir N. O'Conor opposed a Mr. O'Conor, No. suggestion that the Chinese Government should be asked to agree that 300, December 31, individuals falling within this class should receive British protection 1898.
(Confiden- during temporary visits to China on the ground that" the Chinese Ministers tial Print 7070, are so well aware that we do not now claim jurisdiction over them that they would, I fear, look with suspicion on any suggestion for their inclusion in a new arrangement."
It was a well understood rule that no person was registered as a Sir C. MacDonald, British subject unless he was also entitled to protection, but, owing to the No. 65, April 14, confusion in practice referred to above, consuls were occasionally compelled tial Print 8152, to refuse protection to an individual who had been registered. In an extra- No. 1.) territorial country such as China this was liable to have most undesirable consequences. It was the occurrence of a case of this description that was the immediate cause of the decision taken in 1904, referred to in paragraph 1.
19.
No. 26.)
1898. (Confiden-
1903. (Confiden-
In 1903 the Governor of Hong Kong drew attention to a case of Governor Sir H. an Anglo-Chinese of the first generation who had been registered as a Blake, April 16, British subject in China and subsequently refused protection (see tial Print 8972, Appendix I, case No. 13, Chau Ngau Tsz). He was emphatically opposed No. 1.) to any general extension of protection to Anglo-Chinese of the first generation, but, in order to obviate the occurrence of such cases, he con- sidered that a discretionary power should be vested in the Governor. He proposed that an arrangement should be made with the Chinese Govern- ment whereby Anglo-Chinese of the first generation, domiciled in Hong Kong, should receive from the Governor à certificate entitling them to protection in China.
20. This despatch, together with such correspondence on the subject as had previously been printed, was referred to Sir E. Satow, who happened to be in England, on the point of returning to his post in Peking. It is to be feared that Sir E. Satow formed his decision without adequate knowledge or consideration of what was described as "the most thorny and intricate problem with which the Foreign Office had ever had to deal." Sir E. Satow, Within four days he replied to the effect that the only question appeared June 15, 1903. to be whether protection should be refused to Anglo-Chinese of the first (Confidential generation. He thought it was more desirable to stretch a point in order Print 8072, No. 2.) to protect Anglo-Chinese British subjects than, by abandoning any of their rights, to save ourselves trouble.' He suggested, therefore, that the Governor should, at his discretion, grant protection certificates to Anglo- Chinese of the first generation, which the consul would be bound to recognise, and he considered that this step should be taken without negotia- ting any agreement with the Chinese Government, but merely leaving them to make proposals if they find our action inconvenient to them." After discussing the matter with the Governor on his way through Hong Kong, he wrote from Peking repeating the view which he had expressed in London five months earlier. Protection of Anglo-Chinese of the first generation would, he thought, present little difficulty in practice, but, beyond calling for returns from certain ports, he does not appear to have consulted the consuls who would be charged with the duty of affording protection
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