Foreign Enlistment Act 1870

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.

It received royal assent on 9 August 1870.

Background
There was no common law prohibition on enlistment in foreign militaries, and mercenary services predated the development of professional armies. 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. 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. The 1819 act was almost never enforced. In 1833 MP John Murray proposed repeal, saying "There never was an Act of the Legislature so little in accordance with the general opinions of the country." That repeal effort failed, but the law remained ineffective.

On 9 August 1870, in response to the Franco-Prussian War, Parliament repealed the 1819 Act and passed the 1870 Act, a redrafting of the prior legislation. 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. The 1870 act thus applied to wars between states in which Britain was neutral; during the Russo-Turkish War (1877–78), Sino-Japanese War (1894–95), and Russo-Japanese War (1904–05), British officials blocked naval vessels from sailing to belligerents.

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 Lorimer publishes the law of 1870 as it was originally enacted.

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. More than 5,000 Britons served with Simon Bolivar in the Albion Legion and other units during the Spanish American wars of independence. 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.

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. In the small number of prosecutions, the Canadian courts rejected jurisdictional challenges raised by the accused, concluding that the imperial act applied in British North America. 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. 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. Rankin denounced the Foreign Enlistment Act as a violation of the rights of him 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."

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.

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. 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.

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". Its terms of reference included "possible amendment of the Foreign Enlistment Act", which the August 1976 "Diplock Report" described as "antiquated".

Interviewed after the 2022 Russian invasion of Ukraine, Foreign Secretary Liz Truss said she would "absolutely" support Britons volunteering to fight for Ukraine. 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.

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 in independent Commonwealth members.

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

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. 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. 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.

Foreign enlistment was not a political issue again in Canada until the 1930s. 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.

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.

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