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FOREIGN ENLISTMENT ACT 1870

FOREIGN ENLISTMENT ACT 1870 - 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.
[9th August 1870]
Preamble rep. by SLR 1893 (No.2)

Short title to Act.

FOREIGN ENLISTMENT ACT 1870 - SECT 1

1. This Act may be cited for all purposes as "The Foreign
Enlistment Act, 1870."

FOREIGN ENLISTMENT ACT 1870 - SECT 2
Application of Act.

2. This Act shall extend to all the dominions of Her Majesty,
including the adjacent territorial waters.

Penalty on enlistment in service of foreign state.

FOREIGN ENLISTMENT ACT 1870 - SECT 4

4. If any person, without the license of Her Majesty, being a
British subject, within or without Her Majesty's dominions, accepts
or agrees to accept any commission or engagement in the military or
naval service of any foreign state at war with any foreign state
at peace with Her Majesty, and in this Act referred to as a
friendly state, or whether a British subject or not within Her
Majesty's dominions, induces any other person to accept or agree to
accept any commission or engagement in the military or naval service
of any such foreign state as aforesaid,

He shall be guilty of an offence against this Act, and shall be
punishable by fine and imprisonment, or either of such punishments,
at the discretion of the court before which the offender is
convicted; ....

FOREIGN ENLISTMENT ACT 1870 - SECT 5
Penalty on leaving Her Majesty's dominions with intent to serve a
foreign state.

5. If any person, without the license of Her Majesty, being a
British subject, quits or goes on board any ship with a view of
quitting Her Majesty's dominions, with intent to accept any
commission or engagement in the military or naval service of any
foreign state at war with a friendly state, or, whether a British
subject or not, within Her Majesty's dominions, induces any other
person to quit or to go on board any ship with a view of
quitting Her Majesty's dominions with the like intent,

He shall be guilty of an offence against this Act, and shall be
punishable by fine and imprisonment, or either of such punishments,
at the discretion of the court before which the offender is
convicted; ....

FOREIGN ENLISTMENT ACT 1870 - SECT 6
Penalty on embarking persons under false representations as to
service.

6. If any person induces any other person to quit Her Majesty's
dominions or to embark on any ship within Her Majesty's dominions
under a misrepresentation or false representation of the service in
which such person is to be engaged, with the intent or in order
that such person may accept or agree to accept any commission or
engagement in the military or naval service of any foreign state at
war with a friendly state,

He shall be guilty of an offence against this Act, and shall be
punishable by fine and imprisonment, or either of such punishments,
at the discretion of the court before which the offender is
convicted; ....

FOREIGN ENLISTMENT ACT 1870 - SECT 7
Penalty on taking illegally enlisted persons on board ship.

7. If the master or owner of any ship, without the license of Her
Majesty, knowingly either takes on board, or engages to take on
board, or has on board such ship within Her Majesty's dominions,
any of the following persons, in this Act referred to as illegally
enlisted persons; that is to say,

(1)Any person who, being a British subject within or without the
dominions of Her Majesty, has, without the license of Her Majesty,
accepted or agreed to accept any commission or engagement in the
military or naval service of any foreign state at war with any
friendly state;

(2)Any person, being a British subject, who, without the license of
Her Majesty, is about to quit Her Majesty's dominions with intent
to accept any commission or engagement in the military or naval
service of any foreign state at war with a friendly state;

(3)Any person who has been induced to embark under a
misrepresentation or false representation of the service in which
such person is to be engaged, with the intent or in order that
such person may accept or agree to accept any commission or
engagement in the military or naval service of any foreign state at
war with a friendly state;

(1)The offender shall be punishable by fine and imprisonment, or
either of such punishments, at the discretion of the court before
which the offender is convicted ...; and

(2)Such ship shall be detained until the trial and conviction or
acquittal of the master or owner, and until all penalties inflicted
on the master or owner have been paid, or the master or owner has
given security for the payment of such penalties to the satisfaction
of two justices of the peace, or other magistrate or magistrates
having the authority of two justices of the peace; and

(3)All illegally enlisted persons shall immediately on the discovery
of the offence be taken on shore, and shall not be allowed to
return to the ship.

Penalty on illegal shipbuilding and illegal expeditions.

FOREIGN ENLISTMENT ACT 1870 - SECT 8

8. If any person within Her Majesty's dominions, without the license
of Her Majesty, does any of the following acts; that is to say,

(1)Builds or agrees to build, or causes to be built any ship with
intent or knowledge, or having reasonable cause to believe that the
same shall or will be employed in the military or naval service of
any foreign state at war with any friendly state; or

(2)Issues or delivers any commission for any ship with intent or
knowledge, or having reasonable cause to believe that the same shall
or will be employed in the military or naval service of any
foreign state at war with any friendly state; or

(3)Equips any ship with intent or knowledge, or having reasonable
cause to believe that the same shall or will be employed in the
military or naval service of any foreign state at war with any
friendly state; or

(4)Despatches, or causes or allows to be despatched, any ship with
intent or knowledge, or having reasonable cause to believe that the
same shall or will be employed in the military or naval service of
any foreign state at war with any friendly state;

(1)The offender shall be punishable by fine and imprisonment, or
either of such punishments, at the discretion of the court before
which the offender is convicted ...;

(2)The ship in respect of which any such offence is committed, and
her equipment, shall be forfeited to Her Majesty:

(1)If forthwith upon a proclamation of neutrality being issued by
Her Majesty he gives notice to the Secretary of State that he is
so building, causing to be built, or equipping such ship, and
furnishes such particulars of the contract and of any matters
relating to, or done, or to be done under the contract as may be
required by the Secretary of State:

(2)If he gives such security, and takes and permits to be taken
such other measures, if any, as the Secretary of State may
prescribe for ensuring that such ship shall not be despatched,
delivered, or removed without the license of Her Majesty until the
termination of such war as aforesaid.

FOREIGN ENLISTMENT ACT 1870 - SECT 9
Presumption as to evidence in case of illegal ship.

9. Where any ship is built by order of or on behalf of any
foreign state when at war with a friendly state, or is delivered
to or to the order of such foreign state, or any person who to
the knowledge of the person building is an agent of such foreign
state, or is paid for by such foreign state or such agent, and is
employed in the military or naval service of such foreign state,
such ship shall, until the contrary is proved, be deemed to have
been built with a view to being so employed, and the burden shall
lie on the builder of such ship of proving that he did not know
that the ship was intended to be so employed in the military or
naval service of such foreign state.

FOREIGN ENLISTMENT ACT 1870 - SECT 10
Penalty on aiding the warlike equipment of foreign ships.

10. If any person within the dominions of Her Majesty, and without
the license of Her Majesty,

By adding to the number of the guns, or by changing those on
board for other guns, or by the addition of any equipment for war,
increases or augments, or procures to be increased or augmented, or
is knowingly concerned in increasing or augmenting the warlike force
of any ship which at the time of her being within the dominions
of Her Majesty was a ship in the military or naval service of any
foreign state at war with any friendly state,

Such person shall be guilty of an offence against this Act, and
shall be punishable by fine and imprisonment, or either of such
punishments, at the discretion of the court before which the
offender is convicted; ....

FOREIGN ENLISTMENT ACT 1870 - SECT 11
Penalty on fitting out naval or military expeditions without license.

11. If any person within the limits of Her Majesty's dominions, and
without the license of Her Majesty,

Prepares or fits out any naval or military expedition to proceed
against the dominions of any friendly state, the following
consequences shall ensue:

(1)Every person engaged in such preparation or fitting out, or
assisting therein, or employed in any capacity in such expedition,
shall be guilty of an offence against this Act, and shall be
punishable by fine and imprisonment, or either of such punishments,
at the discretion of the court before which the offender is
convicted; ...:

(2)All ships, and their equipments, and all arms and munitions of
war, used in or forming part of such expedition, shall be forfeited
to Her Majesty.

FOREIGN ENLISTMENT ACT 1870 - SECT 12
Punishment of accessories.

12. Any person who aids, abets, counsels, or procures the commission
of any offence against this Act shall be liable to be tried and
punished as a principal offender.

FOREIGN ENLISTMENT ACT 1870 - SECT 13
Limitation of term of imprisonment

13. The term of imprisonment to be awarded in respect of any
offence against this Act shall not exceed two years.

Illegal prize brought into British ports restored.

FOREIGN ENLISTMENT ACT 1870 - SECT 14

14. If, during the continuance of any war in which Her Majesty may
be neutral, any ship, goods, or merchandise captured as prize of
war within the territorial jurisdiction of Her Majesty, in violation
of the neutrality of this realm, or captured by any ship which may
have been built, equipped, commissioned, or despatched, or the force
of which may have been augmented, contrary to the provisions of
this Act, are brought within the limits of Her Majesty's dominions
by the captor, or any agent of the captor, or by any person
having come into possession thereof with knowledge that the same was
prize of war so captured as aforesaid, it shall be lawful for the
original owner of such prize, or his agent, or for any person
authorized in that behalf by the Government of the foreign state to
which such owner belongs, to make application to the Court of
Admiralty for seizure and detention of such prize, and the court
shall, on due proof of the facts, order such prize to be restored.

Every such order shall be executed and carried into effect in the
same manner, and subject to the same right of appeal, as in case
of any order made in the exercise of the ordinary jurisdiction of
such court; and in the meantime and until a final order has been
made on such application the court shall have power to make all
such provisional and other orders as to the care or custody of
such captured ship, goods, or merchandise, and (if the same be of
perishable nature, or incurring risk of deterioration) for the sale
thereof, and with respect to the deposit or investment of the
proceeds of any such sale, as may be made by such court in the
exercise of its ordinary jurisdiction.

License by Her Majesty how granted.

FOREIGN ENLISTMENT ACT 1870 - SECT 15

15. For the purposes of this Act, a license by Her Majesty shall
be under the sign manual of Her Majesty, or be signified by Order
in Council or by proclamation of Her Majesty.

Jurisdiction in respect of offences by persons against Act.

FOREIGN ENLISTMENT ACT 1870 - SECT 16

16. Any offence against this Act shall, for all purposes of and
incidental to the trial and punishment of any person guilty of any
such offence, be deemed to have been committed either in the place
in which the offence was wholly or partly committed, or in any
place within Her Majesty's dominions in which the person who
committed such offence may be.

FOREIGN ENLISTMENT ACT 1870 - SECT 17
Venue in respect of offences by persons.

17. Any offence against this Act may be described in any indictment
or other document relating to such offence, in cases where the mode
of trial requires such a description, as having been committed at
the place where it was wholly or partly committed, or it may be
averred generally to have been committed within Her Majesty's
dominions, and the venue or local description in the margin may be
that of the county, city, or place in which the trial is held.

FOREIGN ENLISTMENT ACT 1870 - SECT 18
Power to remove offenders for trial.

18. The following authorities, that is to say, in the United
Kingdom any judge of a superior court, ... may, by warrant or
instrument in the nature of a warrant in this section included in
the term "warrant," direct that any offender charged with an offence
against this Act shall be removed to some other place in Her
Majesty's dominions for trial in cases where it appears to the
authority granting the warrant that the removal of such offender
would be conducive to the interests of justice, and any prisoner so
removed shall be triable at the place to which he is removed, in
the same manner as if his offence had been committed at such
place.

Any warrant for the purposes of this section may be addressed to
the master of any ship or to any other person or persons, and the
person or persons to whom such warrant is addressed shall have
power to convey the prisoner therein named to any place or places
named in such warrant, and to deliver him, when arrived at such
place or places, into the custody of any authority designated by
such warrant.

Every prisoner shall, during the time of his removal under any such
warrant as aforesaid, be deemed to be in the legal custody of the
person or persons empowered to remove him.

FOREIGN ENLISTMENT ACT 1870 - SECT 19
Jurisdiction in respect of forfeiture of ships for offences against
Act.

19. All proceedings for the condemnation and forfeiture of a ship,
or ship and equipment, or arms and munitions of war, in pursuance
of this Act shall require the sanction of the Secretary of State
..., and shall be had in the Court of Admiralty, and not in any
other court; and the Court of Admiralty shall, in addition to any
power given to the court by this Act, have in respect of any ship
or other matter brought before it in pursuance of this Act all
powers which it has in the case of a ship or matter brought
before it in the exercise of its ordinary jurisdiction.

FOREIGN ENLISTMENT ACT 1870 - SECT 20
Regulations as to proceedings against the offender and against the
ship.

20. Where any offence against this Act has been committed by any
person by reason whereof a ship, or ship and equipment, or arms
and munitions of war, has or have become liable to forfeiture,
proceedings may be instituted contemporaneously or not, as may be
thought fit, against the offender in any court having jurisdiction
of the offence, and against the ship, or ship and equipment, or
arms and munitions of war, for the forfeiture in the Court of
Admiralty; but it shall not be necessary to take proceedings against
the offender because proceedings are instituted for the forfeiture,
or to take proceedings for the forfeiture because proceedings are
taken against the offender.

FOREIGN ENLISTMENT ACT 1870 - SECT 21
Officers authorized to seize offending ships.

21. The following officers, that is to say,

(1)Any officer of customs in the United Kingdom, subject nevertheless
to any special or general instructions from the Commissioners of
Customs, or any officer of the Board of Trade, subject nevertheless
to any special or general instructions from the Board of Trade;

(2)...

(3)Any commissioned officer on full pay in the military service of
the Crown, subject nevertheless to any special or general
instructions from his commanding officer;

(4)Any commissioned officer on full pay in the naval service of the
Crown, subject nevertheless to any special or general instructions
from the [Defence Council] or his superior officer,

Powers of officers authorized to seize ships.

FOREIGN ENLISTMENT ACT 1870 - SECT 22

22. Any officer authorized to seize or detain any ship in respect
of any offence against this Act may, for the purpose of enforcing
such seizure or detention, call to his aid any constable or
officers of police, or any officers of Her Majesty's army or navy
or marines, or any excise officers or officers of customs, or any
harbour master or dock-master, or any officers having authority by
law to make seizures of ships, and may put on board any ship so
seized or detained any one or more of such officers to take charge
of the same, and to enforce the provisions of this Act, and any
officer seizing or detaining any ship under this Act may use force,
if necessary, for the purpose of enforcing seizure or detention; and
if any person is killed or maimed by reason of his resisting such
officer in the execution of his duties, or any person acting under
his orders, such officer so seizing or detaining the ship, or other
person, shall be freely and fully indemnified as well against the
Queen's Majesty, her heirs and successors, as against all persons so
killed, maimed, or hurt.

FOREIGN ENLISTMENT ACT 1870 - SECT 23
Special power of Secretary of State to detain ship.

23. If the Secretary of State ... is satisfied that there is a
reasonable and probable cause for believing that a ship within Her
Majesty's dominions has been or is being built, commissioned, or
equipped contrary to this Act, and is about to be taken beyond the
limits of such dominions, or that a ship is about to be despatched
contrary to this Act, such Secretary of State ... shall have power
to issue a warrant stating that there is reasonable and probable
cause for believing as aforesaid, and upon such warrant the local
authority shall have power to seize and search such ship, and to
detain the same until it has been either condemned or released by
process of law, or in manner herein-after mentioned.

The owner of the ship so detained, or his agent, may apply to the
Court of Admiralty for its release, and the court shall as soon as
possible put the matter of such seizure and detention in course of
trial between the applicant and the Crown.

If the applicant establish to the satisfaction of the court that
the ship was not and is not being built, commissioned, or equipped,
or intended to be despatched contrary to this Act, the ship shall
be released and restored.

If the applicant fail to establish to the satisfaction of the court
that the ship was not and is not being built, commissioned, or
equipped, or intended to be despatched contrary to this Act, then
the ship shall be detained till released by order of the Secretary
of State ....

The court may in cases where no proceedings are pending for its
condemnation release any ship detained under this section on the
owner giving security to the satisfaction of the court that the
ship shall not be employed contrary to this Act, notwithstanding
that the applicant may have failed to establish to the satisfaction
of the court that the ship was not and is not being built,
commissioned, or intended to be despatched contrary to this Act. The
Secretary of State ... may likewise release any ship detained under
this section on the owner giving security to the satisfaction of
such Secretary of State ... that the ship shall not be employed
contrary to this Act, or may release the ship without such security
if the Secretary of State ... think fit so to release the same.

If the court be of opinion that there was not reasonable and
probable cause for the detention, and if no such cause appear in
the course of the proceedings, the court shall have power to
declare that the owner is to be indemnified by the payment of
costs and damages in respect of the detention, the amount thereof
to be assessed by the said court, and any amount so assessed shall
be payable by the Treasury out of any moneys legally applicable for
that purpose. The Court of Admiralty shall also have power to make
a like order for the indemnity of the owner, on the application of
such owner to the court, in a summary way, in cases where the
ship is released by the order of the Secretary of State ...,
before any application is made by the owner or his agent to the
court for such release.

Nothing in this section contained shall affect any proceedings
instituted or to be instituted for the condemnation of any ship
detained under this section where such ship is liable to forfeiture,
subject to this provision, that if such ship is restored in
pursuance of this section, all proceedings for such condemnation
shall be stayed; and where the court declares that the owner is to
be indemnified by the payment of costs and damages for the
detainer, all costs, charges, and expenses incurred by such owner in
or about any proceedings for the condemnation of such ship shall be
added to the costs and damages payable to him in respect of the
detention of the ship.

Nothing in this section contained shall apply to any foreign
non-commissioned ship despatched from any part of Her Majesty's
dominions after having come within them under stress of weather or
in the course of a peaceful voyage, and upon which ship no fitting
out or equipping of a warlike character has taken place in this
country.

FOREIGN ENLISTMENT ACT 1870 - SECT 24
Special power of local authority to detain ship.

24. Where it is represented to any local authority, as defined by
this Act, and such local authority believes the representation, that
there is a reasonable and probable cause for believing that a ship
within Her Majesty's dominions has been or is being built,
commissioned, or equipped contrary to this Act, and is about to be
taken beyond the limits of such dominions, or that a ship is about
to be despatched contrary to this Act, it shall be the duty of
such local authority to detain such ship, and forthwith to
communicate the fact of such detention to the Secretary of State
....

Upon the receipt of such communication the Secretary of State ...
may order the ship to be released if he thinks there is no cause
for detaining her, but if satisfied that there is reasonable and
probable cause for believing that such ship was built, commissioned,
or equipped or intended to be despatched in contravention of this
Act he shall issue his warrant stating that there is reasonable and
probable cause for believing as aforesaid, and upon such warrant
being issued futher proceedings shall be had as in cases where the
seizure or detention has taken place on a warrant issued by the
Secretary of State without any communication from the local
authority.

Where the Secretary of State ... orders the ship to be released on
the receipt of a communication from the local authority without
issuing his warrant, the owner of the ship shall be indemnified by
the payment of costs and damages in respect of the detention upon
application to the Court of Admiralty in a summary way in like
manner as he is entitled to be indemnified where the Secretary of
State having issued his warrant under this Act releases the ship
before any application is made by the owner or his agent to the
court for such release.

FOREIGN ENLISTMENT ACT 1870 - SECT 25
Power of Secretary of State to grant search warrant.

25. The Secretary of State ... may, by warrant, empower any person
to enter any dockyard or other place within Her Majesty's dominions
and inquire as to the destination of any ship which may appear to
him to be intended to be employed in the naval or military service
of any foreign state at war with a friendly state, and to search
such ship.

FOREIGN ENLISTMENT ACT 1870 - SECT 26
Exercise of powers of Secretary of State.

26. Any powers or jurisdiction by this Act given to the Secretary
of State may be exercised by him throughout the dominions of Her
Majesty, ....

Para.(1) rep. by SLR 1953; SI 1973/2163 art.14(2) sch.6

A copy of any warrant issued by a Secretary of State ... shall be
laid before Parliament.

FOREIGN ENLISTMENT ACT 1870 - SECT 27
Appeal from Court of Admiralty.

27. An appeal may be had from any decision of a Court of
Admiralty under this Act to the same tribunal and in the same
manner to and in which an appeal may be had in cases within the
ordinary jurisdiction of the court as a Court of Admiralty.

FOREIGN ENLISTMENT ACT 1870 - SECT 28
Indemnity to officers.

28. Subject to the provisions of this Act providing for the award
of damages in certain cases in respect of the seizure or detention
of a ship by the Court of Admiralty no damages shall be payable,
and no officer or local authority shall be responsible, either
civilly or criminally, in respect of the seizure or detention of
any ship in pursuance of this Act.

FOREIGN ENLISTMENT ACT 1870 - SECT 29
Indemnity to Secretary of State.

29. The Secretary of State shall not, ... be responsible in any
action or other legal proceedings whatsoever for any warrant issued
by him in pursuance of this Act, or be examinable as a witness,
except at his own request, in any court of justice in respect of
the circumstances which led to the issue of the warrant.

Interpretation.

FOREIGN ENLISTMENT ACT 1870 - SECT 30

30. In this Act, if not inconsistent with the context, the
following terms have the meanings herein-after respectively assigned
to them; that is to say,

"Foreign state" includes any foreign prince, colony, province or part
of any province or people, or any person or persons exercising or
assuming to exercise the powers of government in or over any
foreign country, colony, province, or part of any province or
people:

"Military service" shall include military telegraphy and any other
employment whatever, in or in connexion with any military operation:

"Naval service" shall, as respects a person, include service as a
marine, employment as a pilot in piloting or directing the course
of a ship of war or other ship when such ship of war or other
ship is being used in any military or naval operation, and any
employment whatever on board a ship of war, transport, store ship,
privateer or ship under letters of marque; and as respects a ship,
include any user of a ship as a transport, store ship, privateer
or ship under letters of marque:

"United Kingdom" includes the Isle of Man, the Channel Islands, and
other adjacent islands:

Definition rep. by SLR 1893 (No.2)

"Court of Admiralty" shall mean the [High Court]:

"Ship" shall include any description of boat, vessel, floating
battery, or floating craft; also any description of boat, vessel, or
other craft or battery, made to move either on the surface of or
under water, or sometimes on the surface of and sometimes under
water:

"Building" in relation to a ship shall include the doing any act
towards or incidental to the construction of a ship, and all words
having relation to building shall be construed accordingly:

"Equipping" in relation to a ship shall include the furnishing a
ship with any tackle, apparel, furniture, provisions, arms, munitions,
or stores, or any other thing which is used in or about a ship
for the purpose of fitting or adapting her for the sea or for
naval service, and all words relating to equipment shall be
construed accordingly:

"Ship and equipment" shall include a ship and everything in or
belonging to a ship:

"Master" shall include any person having the charge or command of a
ship.

S.31 rep. by SLR 1883

FOREIGN ENLISTMENT ACT 1870 - SECT 32
Saving as to commissioned foreign ships.

32. Nothing in this Act contained shall subject to forfeiture any
commissioned ship of any foreign state, or give to any British
court over or in respect of any ship entitled to recognition as a
commissioned ship of any foreign state any jurisdiction which it
would not have had if this Act had not passed.

FOREIGN ENLISTMENT ACT 1870 - SECT 33
Penalties not to extend to persons entering into military service in
Asia.

33. Nothing in this Act contained shall extend or be construed to
extend to subject to any penalty any person who enters into the
military service of any prince, state, or potentate in Asia, with
such leave or licence as is for the time being required by law in
the case of subjects of Her Majesty entering into the military
service of princes, states, or potentates in Asia.