Report No. 43
5.11. The Foreign Enlistment Act, 1870 (33 and 34 Vict., c. 90).-
The (U.K.) Foreign Enlistment Act, 1870 regulates the conduct of British subjects throughout Her Majesty's dominions during the existence of hostilities between foreign States with which the British Crown is at peace1. Section 4, which is the crucial provision, prohibits, in the absence of a licence from the Government, a British subject from enlistment, in the service of a foreign State which is at war with another foreign State, friendly with the British Crown.
1. The British Act has not been repealed in its application to India by the British Statutes etc. (Repeal) Act, 1960.
5.12. The position at common law has been thus stated1-2:-
"A foreigner who enlists in the forces of either belligerent when an international war is in progress (including a civil war in which recognition of belligerency has been granted by the parent Government or by his own Government) commits no crime against the other belligerent, who is not entitled to punish him if captured. But, following the great example of President Washington (and it was of him that George Canning said:
'If I wished for a guide in a system of neutrality, I should take that laid down by America in the day of the Presidency of Washington and the Secretaryship of Jefferson'), many countries, including our own, have made it a criminal offence to join the forces of any Government at war with a State which is at peace with His Majesty. Our present statute is the Foreign Enlistment Act, 1870. We do not often enforce this part of it, and it is notorious that British subjects are found fighting in nearly every war that occurs."
1. Mc. Nair Law Relating to Civil War in Spain, (1937) 53 Law Quarterly Review 471, 494.
2. See also para. 5.8, above.
5.13. The present English Act on the subject prohibits: (1) the enlistment by a British subject in the military or naval service of either belligerent, and similar acts1; (2) the building, equipping and despatching of vessels for employment in the military or naval service for employment in the military or naval service of either belligerent2; (3) the increase by any person on British territory of the armament of a man-of-war of either belligerent being at the time in a British port3; (4) the preparing or fitting out of a naval or military expedition against a friendly State4. The last two prohibitions apply to any person, subject or alien, within Her Majesty's dominions.
1. Sections 4 to 7, Foreign Enlistment Act, 1870.
2. Section 8 and 9, Foreign Enlistment Act, 1870.
3. Section 10, Foreign Enlistment Act, 1870.
4. Section 11, Foreign Enlistment Act, 1870.
5.14. The extra-territorial application of the Act is interesting. The draftsmen of the Act seems to have devoted considerable attention to this aspect, as is obvious from the care he has taken to indicate, in most of the penal sections, whether the act is to be punished when committed "within Her Majesty's dominions," or when committed "within or without" those dominions.
5.15. In its Report on British Statutes applicable to India, the Law Commission observed in regard to this Act1:-
"This statute regulates the conduct of British subjects throughout the Dominions during the existence of hostilities between foreign States with which the British Crown is at peace. Thus, section 4 prohibits a British subject from enlistment in service of a foreign State which is at war with another foreign State, friendly with the British Crown. Since the extent clause of this statute refers to 'Dominions', it has become inapplicable to India according to Menon's case2-3.
But, such a legislation is necessary for India, for no Indian citizen can be allowed to side against a State friendly with India, in case of war between that State and another. Further, whether the benefit of the legislation should be extended to all members of the Commonwealth is another question to be considered."
1. Fifth Report of the Law Commission (British Statutes applicable to India.)
2. State of Madras v. C.G. Menom, AIR 1954 SC 517: (1955) 1 SCR 280.
3. After the Fifth Report, similar questions as to copyright arise in Blackwood & Sons v. Parasuraman, AIR 1959 Mad 410.