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Confidential Print
8972, pp. 5 and 6. Confidential Print 8972, pp. 20 and
21.
T. Colonial Office,
April 7, 1904.
(Confidential Print 8972, No. 13.)
Sir E. Satow,
June 15, 1903.
8972, No. 2.)
Governor Sir H. Blake. August 26. 1903. (Confiden- tial Print 8972,
14
These proposals, involving the grant of discretionary powers to the Governor, and a definite departure from the recognised rules of inter- national law to which the Foreign Office had in theory hitherto endeavoured to adhere, aroused considerable misgiving. But as they had the support of both the Governor and the Minister they were adopted.
21. The instructions eventually issued in 1904 (see paragraph 1) went far beyond what the Governor had originally proposed. Sir H. Blake in his despatch of the 16th April, 1903, emphasised three points as essential:
(1.) Protection was to be limited to Anglo-Chinese domiciled in Hong Kong
-
It was decided that the animus manendi, which was an essential element of domicile, would be difficult of proof in the case of a Chinese; it was deemed sufficient if they were bona fide residents, permanently established in business in Hong Kong." It was decided that this condition was sufficiently fulfilled by three years continuous residence in Hong Kong prior to the issue of the protection certificate, and in practice the Registrar- General received no instructions to report on any other point than the credibility of evidence of birth.*
(2.) An agreement was to be negotiated with the Chinese Government. Sir E. Satow thought this was unnecessary. The Governor at once came into line, and pointed out that "in practice, the Chinese Government (Confidential Print had yielded to demands of other nations that were not sustainable by any academic interpretation of international law. Chinese subjects, by simply declaring their adhesion to French or German Missions (ie., Christian converts), were supported and protected in such a manner as practically to remove them from the operation of Chinese jurisdiction." No. 5, Enclosure. There was no need, he thought, to compel the Chinese to abandon their claims in regard to persons of the Chinese race; "the solution was to be found in a pronounced determination to protect our subjects wherever they Confidential Print may be." The Foreign Office agreed that the gradual enfeeblement of China and the encroachments of other Powers made negotiation of an agreement unnecessary.
8972, p. 21.
Confidential Print
(3.) Lists of the persons we claimed to protect were to be communicated
8072, Nos. 11 and by the consuls to the Chinese authorities.
15.
Sir E. Satow,
August 22, 1904.
(Confidential
Print 8072, No. 27.)
Consul General
Jamieson, Novem. ber 30, 1921.
[T 598/593/310.]
Sir E. Satow was so instructed, but in the circular instructions which he issued to the consuls no mention was made of this point. This vital omission appears to have passed unnoticed.
In two further respects the instructions went far beyond what was originally contemplated":
(1.) In consequence of the case of Wee Goh Lye (Appendix 1, case No. 14), which happened at this moment to be brought to the notice of the Foreign Office, it was decided to extend protection in China to Chinese who had been registered in any British consulate in Siam and who had resided in Siam for the three years previously.
(2.) The instructions were so worded as to convey the impression that all Anglo-Chinese of the first generation were entitled to registration and protection as British subjects, provided they had complied with the prescribed formalities. Consuls frequently felt a difficulty in refusing protection to a British subject. merely because he had omitted some formality, and the door was thus opened to the registration of all individuals falling within this class.
The fact that Hong Kong birth certificates could easily be procured by suborning subordinate employees of the Government in Hong Kong was freely admitted by the Hong Kong Government. An applicant for a birth certificate had to produce two sponsors, who stated that they knew the applicant's father, and that the applicant had been born in the Colony. These certificates were sometimes claimed and declarations made twenty years after birth. Any Chinese could bribe some person who had access to the registers to find out if any person of the same surname had died in the Colony of such an age at time of death that he could have been the father of the applicant. Having ascertained full particulars of this person, elderly sponsors were then procured, who duly subscribed their naines to the necessary declarations, Compulsory registration of births was instituted in 1896, but it is improbable that it was successful in checking frauds of a similar description.
1
22.
15
The immediate result of the decision to protect Anglo-Chinese of the first generation was a large increase in the numbers of such persons registered or seeking registration in China. The difficulties experienced for so many years past at Amoy, in the neighbourhood of which port most of the Straits Chinese had their homes, were overshadowed by the far more serious difficulties experienced at Canton, which now became the chief centre of friction and conflicts with the Chinese authorities. But whereas Amoy was a comparatively remote and obscure port, Canton was the seat of the Provincial Government and later of a Government claiming to be the Nationalist Government of all China. The bitter relations which grew up between this Government and the British consulate-general at Canton on the one hand, and the Government of Hong Kong on the other, were due in large measure to our assertion of a claim to withdraw so many Chinese subjects from its jurisdiction. In 1903 there were two Anglo- Chinese registered as British subjects at His Majesty's consulate-general at Canton; in 1914 there were forty-seven. Many more had been refused registration because they owned land in the interior, and many more were not registered, but carried with them Hong Kong birth certificates, frequently fraudulent, which were produced as evidence of British nationality if they should happen to get into difficulties with their own authorities. The standing rule was that, whenever the Chinese authorities arrested anyone who claimed to be a British subject the British consul- general immediately demanded his release pending full investigation of the claim. All these individuals thus became actual or potential sources of friction with the Chinese authorities at Canton.
23.
Serious doubts now arose as to the wisdom of the 1904 decision. Governor Siz In 1910 Governor Sir F. H. May stated that, in his opinion, it was open to F. H. May, June question whether the decision to afford Anglo-Chinese of the first genera- 9, 1910. tion protection in China was a wise one. Sir J. Jordan was of the same Print 11426, p. 2.)
(Confidential
Sir J. Jordan to
opinion. The circular of 1904, he thought, was too widely drawn and the decision to protect Anglo-Chinese of the first generation, reversing the Mr. Campbell, previous practice as laid down by the Law Officers, was open to grave February 19, 1911. objections. He was still more strongly of opinion that the decision to (Confidential protect Anglo-Chinese registered as British subjects in Siam was one which Print 11426, p. could not be enforced in China without raising serious difficulties of 27.) which we have unfortunately had some practical experience." He recom- mended that we should immediately abandon our claim to protect these two classes and then await a favourable opportunity for opening negotiations with the Chinese Government on the whole question. The Registrar- General of Hong Kong pointed out in 1911 that the Colony had received 11426, No. 4, much more than it asked for or wanted, and had been left no discretion in Enclosure 8. the use of the gift. He had received no instructions to report on any other point than the credibility of the evidence of birth, and he thought that the present indiscriminate issue of British-born-subject certificates was liable to be greatly abused.*
Confidential Print
The Colonial Office, while agreeing with the view which was now very Confidential Print generally expressed that some agreement should be arrived at with the 11426, No. 1, Chinese Government, vigorously rejected any suggestion, from whatever Enclosure 2. quarter proceeding, that the classes of Anglo-Chinese receiving protection in China should be limited in any way.
24. The decision of 1904 had synchronised with the rise of the Nationalist movement in China. Some five years later, on the 28th March. 1909, China promulgated a law of nationality which was substantially the same as the revised law of 1914 presented to the Extra- territorial Commission in 1925 (see Appendix II). This law reasserted the old doctrine that Chinese nationality was indelible and descended J through any number of generations of persons of the Chinese race born abroad it purported to establish a method by which a Chinese might divest himself of his Chinese nationality, with the consent of the Chinese Government, but so far as is known there has not yet occurred an instance of such consent being granted or even applied for. The position thus
* Subsequently attempts appear to have been made to restrict the issue of these certificates.
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