CO129-533-11 Protection of Anglo-Chinese in China 21-2-1931 - 22-9-1931 — Page 25

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Officers were misled by the mistaken view as to the scope of the Costume Regulation referred to above.

10. The whole question was definitely raised in a despatch from Her Consul Hughes, Majesty's consul-general at Shanghai of the 14th February, 1879.

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February 14, 1879. Enclosure in

It would seem," he wrote, that all persons, without any distinction, Mr. Hugh Fraser who are born within the Dominions of Her Majesty are entitled to all the (Chargé civil privileges conferred by the British character, and that it must, there- d'Affaires), Feb- fore, be my bounden duty to register them, without distinction, as British ruary 21, 1879. subjects.' But, he pointed out, there were certain principles of inter- national law applicable to cases of dual nationality by which he had been guided. "According to the laws of China, as laid down by the Chinese authorities, the children of natural-born Chinese subjects, although born out of the realm of China, and their descendants, do not change their nationality, but, on their return to China, are admitted to the same privileges as, and are, in fact, taken to be, natural-born Chinese subjects. He pointed out that a parallel to this was to be found in the British law of nationality. He had hitherto refused to register such persons "unless they may possess some document issued by British colonial authorities stating that the bearer is fully entitled to protection as a British subject." And he asked for instructions whether he should register and consequently protect against all other authorities all persons indiscriminately who may happen to have been born within the Dominions of Her Majesty.'

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1879.

This was followed by a despatch from Sir Thomas Wade, dealing with Sir Thomas Wade, the whole question of protection of Anglo-Chinese. "The Chinese Govern- ment," he said, "whenever this question of status comes up, emphatically

The Chinese Govern- No. 19, June 9, denies the right of any man of Chinese descent to other than the status of his progenitors. He himself maintained the view that Anglo-Chinese should be protected even if they did not conform to the Costume Regulation, and he explained that he had always held "that where a British Colonial Government vouches for the status of such persons the consul is not at liberty to dispute the authority.' But, if the descendants of Chinese settlers in our Dominions are not British subjects while residing in China, no time, I think, should be lost in declaring this."

The Costume Regulation, it may be observed, though the Foreign Office were not at this time aware of the fact, had never been observed in China and had practically been a dead letter from the date of its issue.

11. When these despatches were considered in the Foreign Office, the view expressed in the minutes was that, "we, according to our principles, cannot contend that being born in a British possession exempts a party from allegiance to the Government to which his parents or even his ancestors were subject, provided that the law of China recognises no limit, as ours does. where the original nationality is held to cease.' Sir Julian Pauncefote expressed his views as follows:-

"If, by Chinese law, the children and grandchildren of Chinese subjects born abroad are still considered Chinese subjects, such children and grandchildren. though born within Her Majesty's Dominions, cannot claim British protection while in Chinese territory.

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This proposition I take to be indisputable, and the rule on which it is founded has been the basis of all the decisions of Her Majesty's Government on similar questions which have arisen between this country and foreign Governments in relation to British nationality and protection for many years past (see the Rep. of Comm. Nat.)."

The despatches were submitted to the Law Officers of the Crown and their opinion was asked in the following terms :—

"Sir Thomas Wade urges that if persons of Chinese parentage who have been born within the British Dominions and are, therefore, British subjects, cannot claim the status and privileges of British subjects while in China, no time should be lost in declaring this to be the law.

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To Law Officers, August 7, 1879.

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