Foreign Enlistment Act 1870

Last updated

Foreign Enlistment Act 1870 [1]
Act of Parliament
Coat of Arms of the United Kingdom (1837).svg
Long title An Act to regulate the conduct of Her Majesty's Subjects during the existence of hostilities between foreign states with which Her Majesty is at peace.
Citation 33 & 34 Vict. c. 90
Dates
Royal assent 9 August 1870
Commencement United Kingdom: 9 August 1870 [2]
Status: Current legislation
Text of the Foreign Enlistment Act 1870 as in force today (including any amendments) within the United Kingdom, from legislation.gov.uk.

The Foreign Enlistment Act 1870 (33 & 34 Vict. c. 90) is an act of the Parliament of the United Kingdom that seeks to regulate mercenary activities of British citizens.

Contents

It received royal assent on 9 August 1870.

Background

Foreign Enlistment Act 1819
Act of Parliament
Coat of Arms of the United Kingdom (1816-1837).svg
Long title An Act to Prevent the Enlisting or Engagement of His Majesty’s Subjects to Serve in Foreign Service, and the Fitting out or Equipping, in his Majesty's Dominions, Vessels for Warlike Purposes Without His Majesty's Licence.
Citation 59 Geo. 3. c. 69
Status: Repealed

There was no common law prohibition on enlistment in foreign militaries, and mercenary services predated the development of professional armies. [3] The Foreign Enlistment Act 1819 (59 Geo. 3. c. 69) (long title "An Act to Prevent the Enlisting or Engagement of His Majesty’s Subjects to Serve in Foreign Service, and the Fitting out or Equipping, in his Majesty's Dominions, Vessels for Warlike Purposes Without His Majesty's Licence") was passed by in 1819. [3] The law was passed to uphold British neutrality in the Spanish American wars of independence and made it a crime punishable by fines and imprisonment for British subjects to serve in foreign militaries. [3] The 1819 Act was rarely enforced. [3] In 1833 MP John Murray proposed repeal, saying "There never was an Act of the Legislature so little under the general opinions of the country." [3] That repeal effort failed, but the law remained ineffective. [3] [4]

On 9 August 1870, in response to the Franco-Prussian War, Parliament repealed the 1819 Act and passed the 1870 Act, a redrafting of the prior legislation. [3] The 1870 act, enacted during the British Empire era, implemented many recommendations of a royal commission convened after the American Civil War. It clarified the scope of prohibited military activity (including making clear that the act only applied to "any foreign state at war with any foreign state at peace with Her Majesty" rather than all peacetime military service, to which the 1819 act extended); limited prison sentences for violations to two years; and made it a crime to prepare for or conduct military expeditions, and made it a crime to aid or abet any violators of the act, or to induce a person's enlistment by misrepresentations. [3] The 1870 act thus applied to wars between states in which Britain was neutral; during the Russo-Turkish War (187778), Sino-Japanese War (189495), and Russo-Japanese War (190405), British officials blocked naval vessels from sailing to belligerents. [5]

Stephen presents late 19th century establishment views. [6] Lorimer publishes the law of 1870 as it was originally enacted. [7]

Prosecutions and non-prosecutions under the 1819 and 1870 acts

Authorities in Britain generally did not enforce the act, and it was often ignored, both in Britain and in British North America (to which the act applied), except in rare situations in which the foreign military activity threatened British neutrality in armed conflicts. [3] More than 5,000 Britons served with Simon Bolivar in the Albion Legion and other units during the Spanish American wars of independence. [3] The 300 Britons who participated in the 1832 military campaign of Dom Pedro of Brazil against Portugal were also not prosecuted. Nor was any action taken against the Irish and Quebec Catholics (British subjects) who fought on behalf of the Papal States (as Zouaves) in the late 1860s, during the Italian Risorgimento. [3]

Britain was neutral in the American Civil War, yet more than 50,000 British North Americans (many Canadians) fought for the Union during the war, and a much smaller number for the Confederacy. There were only a handful of prosecutions. [3] In the small number of prosecutions, the Canadian courts rejected jurisdiction all challenges raised by the accused, concluding that the imperial act applied in British North America. [3] The highest-profile case was that of Colonel Arthur Rankin, a militia officer of the Legislative Assembly of the Province of Canada who in the summer of 1861 personally offered his services to Abraham Lincoln, accepted a Union commission and raised the First Michigan Lancers. [3] Rankin was prosecuted in October 1861; the court rejected Rankin's arguments on jurisdiction, dropped the charge of "recruiting" and referred the charge of enlistment to the Court of Queen's Bench; ultimately, the prosecution was dropped. [3] Rankin denounced the Foreign Enlistment Act as a violation of the rights he and other "Canadian gentlemen not only willing but eager to" fight for the Union as part of their "perfect right to enrol themselves in the cause of freedom – that of the North against the South." [3]

Parliament formally suspended the law on one occasion – in 1835, during the First Carlist War, for two years, permitting British subjects to join the army of Queen Isabella II of Spain. [3]

The last successful prosecution occurred in 1896 in the trial of Sir Leander Starr Jameson, who was convicted for leading the Jameson Raid, a raid from the Cape Colony into the South African Republic (Transvaal) in rebellion against the Boer government there. [3] [8] Problems with evidence prevented the British government from convicting enlistees to the French Foreign Legion or those thousands who joined the fight against Francisco Franco in the Spanish Civil War. [9]

In 1975 the National Liberation Front of Angola advertised for recruits in the British press, prompting the Wilson ministry to get the Privy Council to appoint a committee (Lord Diplock, Derek Walker-Smith and Geoffrey De Freitas) to "Inquire into the Recruitment of Mercenaries". [10] Its terms of reference included "possible amendment of the Foreign Enlistment Act", which the August 1976 "Diplock Report" described as "antiquated". [11]

Interviewed after the 2022 Russian invasion of Ukraine, Foreign Secretary Liz Truss said she would "absolutely" support Britons volunteering to fight for Ukraine. [12] This suggestion caused mixed reactions. Former Attorney General for England and Wales Dominic Grieve, a former member of Truss's Conservative Party, said that Britons who fought in Ukraine would be violating the 1870 Act. By contrast, Sir Bob Neill, the chair of the House of Commons' Justice Select Committee, called the Foreign Enlistment Act an "antiquated piece of legislation" that should not be enforced. [12]

Outside the United Kingdom

The Westminster Act initially applied throughout the British Empire. After the Statute of Westminster 1931 it was gradually repealed or replaced by independent Commonwealth members.

In the Republic of Ireland it was repealed as "inoperative" by the Statute Law Revision Act 1983. [13]

Canada

The Province of Canada passed a clarifying statute in 1865, but it only applied to the Foreign Enlistment Act 1819 and lacked any force after the 1870 statute was enacted. [3] In 1875, MP Télesphore Fournier introduced an act to clarify the imperial act ("An Act to Prevent Enlistment in the Services of Any Foreign State in Certain Cases not provided for by the Foreign Enlistment Act, 1870") as it applied in Canada. [3] The bill went through a first and second reading but was dropped by Prime Minister Alexander Mackenzie, who cited a lack of necessity for the law and expressed concerns that it might conflict with the imperial act. [3]

Foreign enlistment was not a political issue again in Canada until the 1930s. [3] The Canadian Parliament enacted the Canadian Foreign Enlistment Act of 1937 due to concerns that it would not allow for the Canadian government to successfully convict the Communist Party of Canada's ongoing effort to recruit Canadians for the International Brigades in the Spanish Civil War. The Act was passed in April 1937 and formally applied to circumstances in Spain by an order-in-council in July 1937. An investigation was conducted, prosecutors were hired, and warrants were issued for the arrest of participants in the recruiting network, but ultimately there were no prosecutions under the statute. [14]

Up to 40,000 Canadians enlisted in the U.S. military during the Vietnam Era. Although Canada was officially neutral in the conflict, no Canadian Vietnam War veteran was prosecuted for violation of the Canadian Foreign Enlistment Act of 1937. [15]

The Canadian Foreign Enlistment Act of 1937 remains a valid statute. [16]

See also

Related Research Articles

<span class="mw-page-title-main">Statute of Westminster 1931</span> United Kingdom legislation

The Statute of Westminster 1931 is an act of the Parliament of the United Kingdom that sets the basis for the relationship between the Dominions and the Crown.

Universal jurisdiction is a legal principle that allows states or international organizations to claim criminal jurisdiction over an accused person, regardless of where the alleged crime was committed and irrespective of the accused's nationality, country of residence, or any other connection to the prosecuting entity. Crimes prosecuted under universal jurisdiction are considered crimes against all, too serious to tolerate jurisdictional arbitrage. The concept of universal jurisdiction is therefore closely linked to the idea that some international norms are erga omnes, or owed to the entire world community, as well as to the concept of jus cogens—that certain international law obligations are binding on all states.

<span class="mw-page-title-main">Riot Act</span> British legislation

The Riot Act, sometimes called the Riot Act 1714 or the Riot Act 1715, was an act of the Parliament of Great Britain which authorised local authorities to declare any group of 12 or more people to be unlawfully assembled and order them to disperse or face punitive action. The act's full title was "An Act for preventing tumults and riotous assemblies, and for the more speedy and effectual punishing the rioters", and it came into force on 1 August 1715. It was repealed in England and Wales by section 10(2) and Part III of Schedule 3 of the Criminal Law Act 1967. Acts similar to the Riot Act passed into the laws of British colonies in Australia and North America, some of which remain in force today.

The Constitution Act, 1982 is a part of the Constitution of Canada. The Act was introduced as part of Canada's process of patriating the constitution, introducing several amendments to the British North America Act, 1867, including re-naming it the Constitution Act, 1867. In addition to patriating the Constitution, the Constitution Act, 1982 enacted the Canadian Charter of Rights and Freedoms; guaranteed rights of the Aboriginal peoples of Canada; entrenched provincial jurisdiction over natural resources; provided for future constitutional conferences; and set out the procedures for amending the Constitution in the future.

<span class="mw-page-title-main">Sedition Act of 1918</span> Amendment to the 1917 Espionage Act allowing the U.S. Gov. to suppress wartime dissent

The Sedition Act of 1918 was an Act of the United States Congress that extended the Espionage Act of 1917 to cover a broader range of offenses, notably speech and the expression of opinion that cast the government or the war effort in a negative light or interfered with the sale of government bonds.

<span class="mw-page-title-main">Arson in royal dockyards</span> Capital crime in the UK until 1971

Arson in royal dockyards and armories was a criminal offence in the United Kingdom and the British Empire. It was among the last offences that were punishable by capital punishment in the United Kingdom. The crime was created by the Dockyards etc. Protection Act 1772 passed by the Parliament of Great Britain, which was designed to prevent arson and sabotage against vessels, dockyards, and arsenals of the Royal Navy.

The Mutiny Acts were an almost 200-year series of annual Acts passed by the Parliament of England, the Parliament of Great Britain, and the Parliament of the United Kingdom for governing, regulating, provisioning, and funding the English and later British Army.

Two Militia Acts, enacted by the 2nd United States Congress in 1792, provided for the organization of militia and empowered the president of the United States to take command of the state militia in times of imminent invasion or insurrection.

<span class="mw-page-title-main">Habeas Corpus Act 1640</span> United Kingdom legislation

The Habeas Corpus Act 1640 was an Act of the Parliament of England.

An Appropriation Act is an Act of the Parliament of the United Kingdom which, like a Consolidated Fund Act, allows the Treasury to issue funds out of the Consolidated Fund. Unlike a Consolidated Fund Act, an Appropriation Act also "appropriates" the funds, that is allocates the funds issued out of the Consolidated Fund to individual government departments and Crown bodies. Appropriation Acts were formerly passed by the Parliament of Great Britain.

<span class="mw-page-title-main">British Legions</span> Military unit

The British Legion or British Legions were foreign volunteer units which fought under Simón Bolívar against Spain for the independence of Colombia, Venezuela, and Ecuador, and under José de San Martín for the independence of Peru, in the Spanish American wars of independence. Venezuelans generally called them the Albion Legion. They were composed of over seven thousand volunteers, mainly Napoleonic War veterans from Great Britain and Ireland, as well as some German veterans and some locals recruited after arriving in South America. Volunteers in the British Legion were motivated by a combination of both genuine political conviction and mercenary motives.

<span class="mw-page-title-main">Neutrality Act of 1794</span> Former United States law

The Neutrality Act of 1794 was a United States law which made it illegal for a United States citizen to wage war against any country at peace with the United States. The Act declares in part:

If any person shall within the territory or jurisdiction of the United States begin or set on foot or provide or prepare the means for any military expedition or enterprise ... against the territory or dominions of any foreign prince or state of whom the United States was at peace that person would be guilty of a misdemeanor.

<span class="mw-page-title-main">Interpretation Act 1889</span> United Kingdom legislation

The Interpretation Act 1889 was an act of the Parliament of the United Kingdom.

In Canada, the term quasi-constitutional is used for laws which remain paramount even when subsequent statutes, which contradict them, are enacted by the same legislature. This is the reverse of the normal practice, under which newer laws trump any contradictory provisions in any older statute.

<span class="mw-page-title-main">Piracy Act 1850</span> United Kingdom legislation

The Piracy Act 1850, sometimes called the Pirates Repeal Act 1850, is an Act of the Parliament of the United Kingdom. It relates to proceedings for the condemnation of ships and other things taken from pirates and creates an offence of perjury in such proceedings.

<span class="mw-page-title-main">Criminal law in the Chase Court</span>

The Chase Court (1864–1873) issued thirty-five opinions in criminal cases over nine years, at a significantly higher rate than the Marshall Court or Taney Court before it. Notable such cases include Ex parte Milligan (1866), Pervear v. Massachusetts (1866), Ex parte McCardle, Ex parte Yerger (1868), and United States v. Kirby (1868).

<span class="mw-page-title-main">Dean Forest Act 1819</span> United Kingdom legislation

The Dean Forest Act 1819 is an Act of the Parliament of the United Kingdom.

<span class="mw-page-title-main">Foreign Marriage Act 1892</span> United Kingdom law recognising marriages abroad

The Foreign Marriage Act 1892 is an Act of the Parliament of the United Kingdom of Great Britain and Ireland, enacted to provide legal authority for marriages of British subjects performed outside the United Kingdom. It authorised British officials abroad to perform the marriage ceremony, and set out the necessary formalities to be followed, such as notice requirements and registration of the marriage with the British government. Marriages performed under the act would then be recognised under British law as if they had been performed in the United Kingdom. The act also provided that marriages performed abroad under local laws could be registered with the British government, provided a British consular official personally witnessed the marriage.

<span class="mw-page-title-main">International Legion (Ukraine)</span> Ukrainan military unit

The International Legion Defence of Ukraine, or the Ukrainian Foreign Legion, is a military unit of the Ukrainian Ground Forces of composed of foreign volunteers. It was created on 27 February 2022 by the Ukrainian government at the request of President Volodymyr Zelenskyy to fight against the Russian invasion of the country. It was originally part of the Territorial Defense Forces, under the name of International Legion of Territorial Defence of Ukraine, eventually transitioning to the command of the Ukrainian Ground Forces at some point in its existence.

<span class="mw-page-title-main">Seamen's and Soldiers' False Characters Act 1906</span> United Kingdom legislation

The Seamen's and Soldiers' False Characters Act 1906 was an act of the Parliament of the United Kingdom. The act criminalised the forgery of discharge papers, held by those leaving the British armed forces. It also criminalised the use of false character statements by those seeking to join the armed forces and the making of such statements. The act was superseded in part by later legislation and there are no known prosecutions made under it. The act was repealed in 2008 following a recommendation by the Law Commission.

References

  1. The citation of this act by this short title is authorised by section 1 of this act.
  2. The Foreign Enlistment Act 1870, section 3
  3. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Tyler Wentzell, Mercenaries and Adventurers: Canada and the Foreign Enlistment Act in the Nineteenth Century, Canadian Military History vol. 23, no. 2 (2014).
  4. Kenny, C. Outlines of Criminal Law (Cambridge University Press, 1936), 15th edition, p. 378
  5. Nir Arielli, From Byron to Bin Laden: A History of Foreign War Volunteers (Harvard University Press: 2018), p. 129.
  6. James Fitzjames Stephen, "A History of the Criminal Law of England", p262, 1883, republished 2014 by CUP
  7. James Lorimer, "The Institutes of the Law of Nations: A Treatise of the Jural Relations of Separate Political Communities", c. XII. Edinburgh: William Blackwood and Sons, 1883, 1884; reprinted 2005 by the Lawbook Exchange
  8. R v Jameson (1896) 65 LJMC 218; 60 JP 662.
  9. Mackenzie, S. P. (1 January 1999). "The Foreign Enlistment Act and the Spanish Civil War, 1936-1939". Twentieth Century British History. 10 (1): 52–66. doi:10.1093/tcbh/10.1.52.
  10. "Committee of Privy Counsellors on the Recruitment of Mercenaries: Report". nationalarchives.gov.uk. Retrieved 27 February 2022.
  11. Cmnd 6569, para 92; cited in Liu, H. Y. (1 March 2010). "Leashing the Corporate Dogs of War: The Legal Implications of the Modern Private Military Company" (PDF). Journal of Conflict and Security Law. 15 (1): 150 n. 48. doi:10.1093/jcsl/krp025 via academia.edu.[ dead link ]
  12. 1 2 Sparrow, Andrew (27 February 2022). "Liz Truss criticised for backing Britons who wish to fight in Ukraine". The Guardian. Retrieved 27 February 2022.
  13. Wentzell, Tyler (1 November 2017). "Canada's Foreign Enlistment Act and the Spanish Civil War". Labour / Le Travail. 80: 213–246. doi:10.1353/llt.2017.0048. ISSN   1911-4842. S2CID   149252443.
  14. The Canadian Way: The Case of Canadian Vietnam War Veterans, Canadian Military Journal, Vol. 15, No. 3, Summer 2015.
  15. Branch, Legislative Services (31 December 2002). "Consolidated federal laws of canada, Foreign Enlistment Act". laws-lois.justice.gc.ca. Retrieved 21 April 2019.