No. 121.
[Untitled]
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, August 9, 1870.
Whereas it is expedient to make provision for the regulation of the conduct of her Majesty’s subjects during the existence of hostilities between foreign states with which her Majesty is at peace—
Be it enacted by the Queen’s most excellent Majesty, by and. with the advice and consent of the lords spiritual and temporal, and commons, in this present Parliament assembled, and by the authority of the same, as follows:
preliminary.
First. This act may be cited for all purposes as “The foreign enlistment act, 1870.”
Second. This act shall extend to all the dominions of her Majesty, including the adjacent territorial waters.
Third. This act shall come into operation in the United Kingdom immediately on the passing thereof, and shall be proclaimed in every British possession by the governor thereof as soon as may be after he receives notice of this act, and shall come into operation in that British possession on the day of such proclamation, and the time at which this act comes into operation in any place is, as respects such place, in this act referred to as the commencement of this act.
illegal enlistment.
Fourth. 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 offense 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; and imprisonment, if awarded, may be either with or without hard labor.
Fifth. 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 offense 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; and imprisonment, if awarded, may be either with or without hard labor.
Sixth. 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 offense 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; and imprisonment, if awarded, may be either with or without hard labor.
Seventh. 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 [Page 159] or naval service of any foreign state at war with a friendly state, such master or owner shall be guilty of an offense against this act, and the following consequences shall ensue; that is to say: 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 imprisonment, if awarded, may be either with or without hard labor; 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 offense be taken on shore, and shall not be allowed to return to the ship.
illegal ship-building and illegal expeditions.
Eighth. 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. Dispatches, or causes or allows to be dispatched, any ship with intent or knowledge, or haying 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—such person shall be deemed to have committed an offense against this act, and the following consequences shall ensue: 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 imprisonment, if awarded, may be either with or without hard labor. 2, The ship in respect of which any such offense is committed, and her equipment, shall be forfeited to her Majesty: Provided, That a person building, causing to be built, or equipping a ship in any of the cases aforesaid, in pursuance of a contract made before the commencement of such war as aforesaid, shall not be liable to any of the penalties imposed by this section in respect of such building or equipping if he satisfies the conditions following; that is to say: 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 requited by the secretary of state. 2. If he gives such security, and takes and permits to be be taken such other measures, if any, as the secretary of state may prescribe for insuring that such ship shall not be dispatched, delivered, or removed without the license of her Majesty until the termination of such war as aforesaid.
Ninth. 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.
Tenth. 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 offense against this act, and shall be punishable by tine and imprisonment, or either of such punishments, at the discretion of the court before which the offender is convicted; and imprisonment, if awarded, may be either with or without hard labor.
Eleventh. 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 offense 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; and imprisonment, [Page 160] if awarded, may be either with or without hard labor. 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.
Twelfth. Any person who aids, abets, counsels, or procures the commission of any offense against this act shall be liable to be tried and punished as a principal offender.
Thirteenth. The term of imprisonment to be awarded in respect of any offense against this act shall not exceed two years.
illegal prize.
Fourteenth. 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 dispatched, 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 mean time 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.
general provision.
Fifteenth. 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.
legal procedure.
Sixteenth. Any offense against this act shall, for all purposes of and incidental to the trial and punishment of any person guilty of any such offense, be deemed to have been committed either in the place in which the offense was wholly or partly committed, or in any place within her Majesty’s dominions in which the person who committed such offense may be.
Seventeenth. Any offense against this act may be described in any indictment or other document relating to such offense, 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.
Eighteenth. The following authorities, that is to say, in the United Kingdom, any judge of a superior court, in any other place within the jurisdiction of any British court of justice, such court, or, if there are more courts than one, the court having the highest criminal jurisdiction in that place, 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 offense 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 offense 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.
Nineteenth. 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 or such chief executive authority as is in this act [Page 161] mentioned, 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.
Twentieth. Where any offense 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 offense, 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.
Twenty-first. 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. Any officer of customs or public officer in any British possession, subject nevertheless to any special or general instructions from the governor of such possession. 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 admiralty or his superior officer, may seize or detain any ship liable to be seized or detained in pursuance of this act, and such officers are in this act referred to as the “local authority;” but nothing in this act contained shall derogate from the power of the court of admiralty to direct any ship to be seized or detained by any officer by whom such court may have power under its ordinary jurisdiction to direct a ship to be seized or detained.
Twenty-second. Any officer authorized to seize or detain any ship in respect of any offense 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 harbor-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.
Twenty-third. If the secretary of state or the chief executive authority 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 dispatched contrary to this act, such secretary of state or chief executive authority 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 hereinafter 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 dispatched 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 dispatched contrary to this act, then the ship shall be detained till released by order of the secretary of state or chief executive authority. 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 dispatched contrary to this act. The secretary of state or the chief executive authority may likewise release any ship detained under this section on the owner giving security to the satisfaction of such secretary of state or chief executive authority that the ship shall not be employed contrary to this act, or may release the ship without such security, if the secretary of state or chief executive authority think fit so to release the same. If the [Page 162] 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 court, and any amount so assessed shall be payable by the commissioners of 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 or the chief executive authority, 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 dispatched 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.
Twenty-fourth. 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 dispatched 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 or chief executive authority. Upon the receipt of such communication the secretary of state or chief executive authority 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 dispatched 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, further 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 or chief executive authority 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.
Twenty-fifth. The secretary of state or the chief executive authority may, by warrant, empower any person to enter any dock-yard 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.
Twenty-sixth. Any powers or jurisdiction by this act given to the secretary of state may be exercised by him throughout the dominions of her Majesty, and such powers and jurisdiction may also be exercised by any of the following officers, in this act referred to as the chief executive authority, within their respective jurisdictions; that is to say: 1. In Ireland, by the lord lieutenant or other the chief governor or governors of Ireland for the time being, or the chief secretary to the lord lieutenant. 2. In Jersey, by the lieutenant governor. 3. In Guernsey, Alderney, and Sark, and the dependent islands, by the lieutenant governor. 4. In the Isle of Man, by the lieutenant governor. 5. In any British possession, by the governor. A copy of any warrant issued by a secretary of state or by any officer authorized in pursuance of this act to issue such warrant in Ireland, the Channel Islands, or the Isle of Man shall be laid before Parliament.
Twenty-seventh. 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.
Twenty-eighth. 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.
[Page 163]Twenty-ninth. The secretary of state shall not, nor shall the chief executive authority, 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 clause.
Thirtieth. In this act, if not inconsistent with the context, the following terms have the meanings hereinafter 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 connection 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.
“British possession” means any territory, colony, or place being part of her Majesty’s dominions, and not part of the United Kingdom, as defined by this act.
“The secretary of state” shall mean any one of her Majesty’s principal secretaries of state.
“The governor” shall, as respects India, mean the governor general or the governor of any presidency, and where a British possession consists of several constituent colonies, mean the governor general of the whole possession or the governor of any of the constituent colonies; and as respects any other British possession, it shall mean the officer for the time being administering the government of such possession; also any person acting for or in the capacity of a governor shall be included under the term “governor.”
“Court of admiralty” shall mean the high court of admiralty of England or Ireland, the court of session of Scotland or any vice-admiralty court within her Majesty’s dominions.
“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 toward 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 equipping 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.
repeal of acts, and saving clauses.
Thirty-first. From and after the commencement of this act, an act passed in the fifty-ninth year of the reign of his late Majesty King George the Third, chapter sixty-nine, intituled “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 license,” shall be repealed: Provided that such repeal shall not affect any penalty, forfeiture, or other punishment incurred or to be incurred in respect of any offense committed before this act comes into operation, nor the institution of any investigation or legal proceeding, or any other remedy for enforcing any such penalty, forfeiture, or punishment as aforesaid.
Thirty-second. 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.
Thirty-third. 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 license 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.