Foreign Enlistment Act 1870
|Citation||33 & 34 Vict. c.90|
|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.|
It received the royal assent on 9 August 1870.
Hansard has reference to "Foreign Enlistment Bill" discussions from 1819 to 2006. Stephen presents late 19th century establishment views. Lorimer publishes the law of 1870 as it was originally enacted.
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 to prohibit British subjects from participating in foreign wars, but during the American Civil War it was found to be ineffective.
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.
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.
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.
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, however this report must have predated the Jameson trial.
The Privy Council has claimed the act to be an "antiquated piece of legislation...passed on the outbreak of the Franco-Prussian war."
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. The Canadian Foreign Enlistment Act of 1937 remains a valid statute.
- Hansard record of debates on Foreign Enlistment, 1819-2005
- James Fitzjames Stephen, "A History of the Criminal Law of England", p262, 1883, republished 2014 by CUP
- 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
- 59 Geo. 3 c. 69
- Kenny, C. Outlines of Criminal Law (Cambridge University Press, 1936), 15th edition, p. 378
- Wentzell, Tyler (2017-11-01). "Canada's Foreign Enlistment Act and the Spanish Civil War". Labour / Le Travail. 80. ISSN 1911-4842.
- Branch, Legislative Services (2002-12-31). "Consolidated federal laws of canada, Foreign Enlistment Act". laws-lois.justice.gc.ca. Retrieved 2019-04-21.
- "The Foreign Enlistment Act and the Spanish Civil War, 1936–1939", Twentieth Century British History, 1999, 10(1):52-66.
- Text of the Foreign Enlistment Act 1870 as in force today (including any amendments) within the United Kingdom, from legislation.gov.uk.