Foreign Enlistment Act 1870

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Foreign Enlistment Act
Coat of Arms of the United Kingdom (1837-1952).svg
Citation 33 & 34 Vict. c.90
Dates
Royal assent 9 August 1870
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 Parliament of the Parliament of the United Kingdom that seeks to regulate mercenary activities of British citizens.

An act of parliament, also called primary legislation, are statutes passed by a parliament (legislature). Act of the Oireachtas is an equivalent term used in the Republic of Ireland where the legislature is commonly known by its Irish name, Oireachtas. It is also comparable to an Act of Congress in the United States.

Parliament of the United Kingdom supreme legislative body of the United Kingdom

The Parliament of the United Kingdom of Great Britain and Northern Ireland, commonly known internationally as the UK Parliament, British Parliament, or Westminster Parliament, and domestically simply as Parliament, is the supreme legislative body of the United Kingdom, the Crown dependencies and the British Overseas Territories. It alone possesses legislative supremacy and thereby ultimate power over all other political bodies in the UK and the overseas territories. Parliament is bicameral but has three parts, consisting of the Sovereign, the House of Lords, and the House of Commons. The two houses meet in the Palace of Westminster in the City of Westminster, one of the inner boroughs of the capital city, London.

Mercenary soldier who fights for hire

A mercenary, sometimes known as a soldier of fortune, is an individual who takes part in military conflict for personal profit, is otherwise an outsider to the conflict, and is not a member of any other official military. Mercenaries fight for money or other forms of payment rather than for political interests. In the last century, mercenaries have increasingly come to be seen as less entitled to protections by rules of war than non-mercenaries. Indeed, the Geneva Conventions declare that mercenaries are not recognized as legitimate combatants and do not have to be granted the same legal protections as captured soldiers of a regular army. In practice, whether or not a person is a mercenary may be a matter of degree, as financial and political interests may overlap, as was often the case among Italian condottieri.

Contents

It received the royal assent on 9 August 1870.

Background

Hansard has reference to "Foreign Enlistment Bill" discussions from 1819 to 2006. [1] Stephen presents late 19th century establishment views. [2] Lorimer publishes the law of 1870 as it was originally enacted. [3]

James Fitzjames Stephen British lawyer and judge

Sir James Fitzjames Stephen, 1st Baronet, KCSI was an English lawyer, judge and writer.

James Lorimer (advocate) British lawyer

James Lorimer of Kellyfield, FRSE LLD was a Scottish advocate and professor of public law. He was an authority on international law.

Numerous former members of the UK armed forces had fought in the South American wars of independence against Spain. In those conflicts, trained officers of what was then regarded as the strongest military in the world successfully organised insurgents against Spain and caused major headaches for the Spanish expeditionary forces. Ultimately, Spain lost most of her territorial possessions in the Western Hemisphere and Anglo-Spanish relations were left strained for several decades. A law was passed in 1819 [4] to prohibit British subjects from participating in foreign wars, but during the American Civil War it was found to be ineffective. [5]

Spain Kingdom in Southwest Europe

Spain, officially the Kingdom of Spain, is a country mostly located in Europe. Its continental European territory is situated on the Iberian Peninsula. Its territory also includes two archipelagoes: the Canary Islands off the coast of Africa, and the Balearic Islands in the Mediterranean Sea. The African enclaves of Ceuta, Melilla, and Peñón de Vélez de la Gomera make Spain the only European country to have a physical border with an African country (Morocco). Several small islands in the Alboran Sea are also part of Spanish territory. The country's mainland is bordered to the south and east by the Mediterranean Sea except for a small land boundary with Gibraltar; to the north and northeast by France, Andorra, and the Bay of Biscay; and to the west and northwest by Portugal and the Atlantic Ocean.

American Civil War Civil war in the United States from 1861 to 1865

The American Civil War was a civil war fought in the United States from 1861 to 1865, between the North and the South. The most studied and written about episode in U.S. history, the Civil War began primarily as a result of the long-standing controversy over the enslavement of black people. War broke out in April 1861 when secessionist forces attacked Fort Sumter in South Carolina shortly after Abraham Lincoln had been inaugurated as the President of the United States. The loyalists of the Union in the North proclaimed support for the Constitution. They faced secessionists of the Confederate States in the South, who advocated for states' rights to uphold slavery.

On 19 July 1870 Napoleon III of France declared war on the Kingdom of Prussia. The outbreak of hostilities put the UK in a delicate diplomatic position. Although relations between the UK and France had steadily improved since the end of the Napoleonic Wars, the UK's relations with Prussia were also close at the time due to the then-recent marriage of Queen Victoria's eldest daughter to Prussian Crown Prince Frederick.

Napoleon III French emperor, president, and member of the House of Bonaparte

Napoleon III, the nephew of Napoleon I, was the first elected President of France from 1848 to 1852. When he could not constitutionally be re-elected, he seized power in 1851 and became the Emperor of the French from 1852 to 1870. He founded the Second French Empire and was its only emperor until the defeat of the French army and his capture by Prussia and its allies in the Franco-Prussian War in 1870. He worked to modernize the French economy, rebuilt the center of Paris, expanded the overseas empire, and engaged in the Crimean War and the war for Italian unification. After his defeat and downfall he went into exile and died in England in 1873.

Second French Empire government of France under Napoleon III, from 1852 to 1870

The Second French Empire, officially the French Empire, was the regime of Napoleon III from 1852 to 1870, between the Second Republic and the Third Republic, in France.

Franco-Prussian War significant conflict pitting the Second French Empire against the Kingdom of Prussia and its allies

The Franco-Prussian War or Franco-German War, often referred to in France as the War of 1870, was a conflict between the Second French Empire and later the Third French Republic, and the German states of the North German Confederation led by the Kingdom of Prussia. Lasting from 19 July 1870 to 28 January 1871, the conflict was caused by Prussian ambitions to extend German unification and French fears of the shift in the European balance of power that would result if the Prussians succeeded. Some historians argue that the Prussian chancellor Otto von Bismarck deliberately provoked the French into declaring war on Prussia in order to draw the independent southern German states—Baden, Württemberg, Bavaria and Hesse-Darmstadt—into an alliance with the North German Confederation dominated by Prussia, while others contend that Bismarck did not plan anything and merely exploited the circumstances as they unfolded. None, however, dispute the fact that Bismarck must have recognized the potential for new German alliances, given the situation as a whole.

Following the French declaration of war public opinion in the UK was on the side of Prussia and her German allies, and in other European states (especially Italy) men attempted to volunteer in considerable numbers to fight on the Prussian side. In addition, contrary to the eventual result of the conflict, many neutral military observers thought the French Empire to be stronger than Prussia. Given such considerations, the British government was keen on maintaining neutrality in the conflict at all costs and wary of any actions by its subjects that might have antagonised Napoleon III.

Italy republic in Southern Europe

Italy, officially the Italian Republic, is a country in Southern Europe. Located in the middle of the Mediterranean Sea, Italy shares open land borders with France, Switzerland, Austria, Slovenia and the enclaved microstates San Marino and Vatican City. Italy covers an area of 301,340 km2 (116,350 sq mi) and has a largely temperate seasonal and Mediterranean climate. With around 61 million inhabitants, it is the fourth-most populous EU member state and the most populous country in Southern Europe.

The Act made it a crime for any subject of the United Kingdom of Great Britain and Ireland to enlist themselves in the military of any foreign power at war with any state with which the UK was at peace.

United Kingdom of Great Britain and Ireland Historical sovereign state from 1801 to 1927

The United Kingdom of Great Britain and Ireland was established by the Acts of Union 1800, which merged the kingdoms of Great Britain and Ireland.

Failure

The last successful prosecution occurred in 1896 in the Leander Starr Jameson trial. A Privy Council report claimed that no successful prosecutions came from the act,[ citation needed ] however this report must have predated the Jameson trial.

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 Spain. [6]

The Privy Council has claimed the act to be an "antiquated piece of legislation...passed on the outbreak of the Franco-Prussian war." [7]

Canada

The British Foreign Enlistment Act of 1870 applied throughout the British Empire until the various colonies and dominions formally repealed it. The British statute was not repealed in Canada until 1937 due to concerns that the British statute would not allow for the successful conviction of the Communist Party of Canada's ongoing effort to recruit Canadians for the International Brigades in the Spanish Civil War. The Canadian Foreign Enlistment Act of 1937 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. [8] The Canadian Foreign Enlistment Act of 1937 remains a valid statute. [9]

See also

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References

  1. Hansard record of debates on Foreign Enlistment, 1819-2005
  2. James Fitzjames Stephen, "A History of the Criminal Law of England", p262, 1883, republished 2014 by CUP
  3. 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
  4. 59 Geo. 3 c. 69
  5. Kenny, C. Outlines of Criminal Law (Cambridge University Press, 1936), 15th edition, p. 378
  6. http://tcbh.oxfordjournals.org/cgi/content/abstract/10/1/52
  7. http://www.oup.co.uk/pdf/1-84-174183-3.pdf
  8. Wentzell, Tyler (2017-11-01). "Canada's Foreign Enlistment Act and the Spanish Civil War". Labour / Le Travail. 80. ISSN   1911-4842.
  9. Branch, Legislative Services (2002-12-31). "Consolidated federal laws of canada, Foreign Enlistment Act". laws-lois.justice.gc.ca. Retrieved 2019-04-21.