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on the jus sanguinis,” The earliest of these statutes were the Acts of 1730 and 1772. The Act of 1914, which repealed the earlier British Nationality Acts. restricted the acceptation of the jus sanguinis. The children born of a British father in a foreign country were no longer to be natural born British subjects unless their father had been born on British soil.
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The Act of 1922, swinging to the other extreme, adopts the jus sanguinis as a principal basis of British nationality. The additional paragraph which is inserted in the Act of 1914 has the effect of enabling British nationality to be maintained through successive generations by complying simply with the conditions of registration at a consulate at birth and renewal of the registration on the child attaining his majority. Provided the father of the child is a British subject he can pass on his nationality to his children by registering the birth at a British vate International consulate within one year."
Westlake, Pri-
Law," 7th Edi- tion, pp. 368, 369,
A further important proviso is that if the child is a subject or a citizen of a foreign country under the law of which he can, at the time of asserting his British nationality, divest himself of the nationality of that foreign country by making a declaration of alienage or otherwise. he must divest himself of that nationality accordingly.
The Chinese law, on the other hand, continues Chinese nationality to the descendants of Chinese for an infinite number of generations irrespective of whether the persons concerned may have obtained a different nationality or whether they have retained any connection with China. This is a great contrast to the careful provisions of the English statute, but in judging of its reasonableness or otherwise, it is necessary to take into consideration the factor of extra-territoriality. China has never, at any rate since foreign intercourse began, denied the right of Chinese to become subjects or citizens of a foreign State. She has, however, consistently maintained that the original allegiance of such individuals revives immediately they set foot on Chinese soil. For China, it is far more a question of jurisdiction than of nationality, and it is difficult to deny that she has justice on her side in claiming that persons who are Chinese by race, habits and instincts, and who are, therefore, indistinguish- able from the native population, should not evade the jurisdiction of the Chinese courts by claiming a foreign nationality on Chinese soil. It is, of course, possible by the letter of the law that China might claim as a Chinese citizen one who had been absent so many generations from China as to have entirely lost his Chinese character. The Foreign Office archives, however, contain no record of any such case in the past, and if any such occur in the future it may safely be reserved for special negotiation.
The factor of extra-territoriality, it may be noted. also exercises a disturbing influence on the English Law of Nationality. The Act of 1922, referred to above, continues British nationality automatically to the descendants of Englishmen for an infinite number of generations born in China exactly as Chinese nationality descends through any number of generations born abroad-thereby providing Chinese politicians with an argument in debate of which they are not slow to make full use.
35. It was generally recognised that the withdrawal from Chinese jurisdiction of persons who were indistinguishable from the native popula- tion was a legitimate grievance, but, unfortunately, our efforts to remedy it were futile. The Costume Regulation was nominally in force from 1868 to 1904. A Chinese had but to wear foreign boots and conceal his queue under a foreign straw hat; he could then get registered as a British subject and revert to Chinese costume next day. The regulation was so obviously futile that it was a dead letter almost from the day it was promulgated. When in 1904 the door was opened to all Chinese born on British soil, it was hoped to remedy the grievance by an elaborate system of certificates and by confining protection strictly to those who were registered and limiting protection to acts subsequent to registration. But this plan, also, was foredoomed to failure. Once it was laid down that a British subject was entitled to protection despite his second nationality, a consul was bound to protect him whether registered or not. If such an individual were arrested by the Chinese authorities, a consul could not stop to enquire
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whether he had complied with all the prescribed formalities when delay might endanger his life. The consul must interfere energetically, and at once or not at all. Hence arose the rule that has caused so much friction, that on merely claiming British nationality a man must be released pending reference to the consul. The one expedient, which was found so effective by the Dutch, namely, lists of registered subjects agreed upon between the local authorities and the consul was tried in Sinkiang with marked success, but not elsewhere.
Another expedient that was not only futile, but gave rise to grave difficulties, was that of withdrawing protection in cases where protection had been abused. If a Chinese is registered as a British subject he may buy land and have his title-deed registered in the British consulate. He may be refused assistance, but his title-deed must be upheld, or all British title-deeds become insecure. He may hoist the British flag on a vessel on the inland waters and the British navy must protect the vessel, though it may have been engaged in smuggling or even piracy. The consul may refuse to protect him, but he must take jurisdiction over him, for if the Chinese are allowed to take jurisdiction over him then the liberties of all British subjects are endangered. In an extra-territorial country a man must be under the jurisdiction of one court only. If he is tried in the British court one day and the Chinese court another, the confusion that results is an offence against the community, who are entitled to know, when dealing with a man, in what court they may seek redress. In an extra-territorial country recognition, registration, protection and jurisdiction must be co-extensive. The utmost that a consul who wishes to withdraw protection can do is to refuse to take up a case that is brought to him for his assis- tance; but that is no more than what he frequently is compelled to do in the case even of the most respectable of his nationals who may be ignorant of their exact treaty rights.
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36. The question arises, what course His Majesty's Government should now follow. It seems clear that negotiations are not possible, for even if there were a Chinese Government with whom we could negotiate, we should be met at the outset with a simple demand that we should cease violating international law. The treaty alteration proposals which His Majesty's Government made in January 1927 contained an offer to recognise a reasonable Chinese nationality law." These proposals were expressly framed so that they might be carried out by unilateral action by us alone and without any negotiations. The obvious course would, there- fore, appear to be to admit that the present Chinese nationality law is not unreasonable-which, in fact, would seem to be the case and forthwith take steps to implement our offer without further parley. It would only be necessary to safeguard, so far as it lies in our power to do so, the interests of those Anglo-Chinese at present residing in China under British protection. If this policy is approved in principle the following steps would appear to be necessary:—
(1.) His Majesty's consuls in China should be instructed in future to register as British subjects only those who have already been registered. Any who have not been registered during the past, say, two years, should not be registered again.
(2.) His Majesty's consuls should also notify all Anglo-Chinese that. though registered as British subjects, they are also, by Chinese law, Chinese subjects; that it is proposed at some future time to establish a system of communicating to the Chinese authorities lists of all Chinese subjects who also possess British nationality and are registered as British subjects and that if any Anglo-Chinese desire, prior to the establishment of this system. to cease to be registered as British subjects. their registration will, on due application, be cancelled.
(3.) The issue of protection certificates by Colonial Governments should cease entirely forthwith; any certificate of birth, passport, or other similar document, issued to individuals of Chinese race should bear an endorsement in the English and Chinese
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