Foreign Enlistment Act

British Foreign Enlistment Acts of 1819 and 1870

In 1819, the British Parliament passed the Foreign Enlistment Act. This was in response to more than 5,000 Britons — mostly demobilized veterans of the Napoleonic Wars — travelling to South America to fight in Simon Bolívar’s armies. (Bolívar was a Venezuelan soldier who led revolutions against Spanish rule in what what is now Colombia, Venezuela, Ecaudor, Peru and Bolivia.) The law prohibited British subjects from serving in foreign militaries and prohibited anyone from recruiting for foreign militaries on British territory. It also prohibited the construction or outfitting of warships for foreign powers. The law applied to the United Kingdom as well as its overseas colonies.

British authorities, however, continued to recruit foreigners for service in the British military. For instance, British officials recruited extensively within the United States during the Crimean War. They also appreciated foreign military experience. French-Canadian militia officer Louis-Adolphe Casault served in the French Foreign Legion during the Crimean War and the British 100th Royal Canadian Regiment of Foot afterward. He became an essential figure in the post-Confederation militia, commanding the troops in and around Montreal and the Quebec Rifles during the Red River Expedition of 1870.

The Foreign Enlistment Act was particularly relevant in British North America following the outbreak of the American Civil War. An estimated 35,000 to 50,000 British North Americans served in American federal forces. The first volunteers likely joined for adventure or in the cause of emancipation, but there was also a strong financial motivation after the United States adopted a system of compulsory military service in 1862. If drafted, Americans could find a replacement and avoid military service entirely. Consequently, American recruiters came to British North America and offered bounties for such volunteers. British North Americans also participated in this lucrative recruiting network. Regardless of nationality, recruiters were routinely arrested and prosecuted under the Foreign Enlistment Act.

Few were charged with enlisting for military service during the American Civil War. Kingston penitentiary records show one man convicted of serving in the U.S. Army, and there were likely other cases in which convicted individuals paid a fine or served shorter sentences in a local jail. More famously, a Toronto merchant tied to a Confederate newspaper editor pursued a private prosecution of Arthur Rankin, a member of the provincial Parliament and Canadian militia officer who joined the American military and raised a regiment of Canadians in Michigan. Rankin later resigned his American commission on account of heightened tensions between Britain and the United States following the 1861 Trent affair. The charges against Rankin were dropped.

Between 1868 and 1870, more than 500 French Canadians left Canada to defend Pope Pius IX. These Papal Zouaves did not face prosecution upon returning, nor was any legal action pursued against the high-profile members of the recruiting committee. The inaction was likely due to concerns that prosecution would drive a wedge between English and French Canada shortly after Confederation. There was little risk of Canada or Britain being forced into a war with an Italian state because of the Papal Zouaves, and there was considerable risk to Confederation if French-Canadians perceived an attack on their freedom to defend the Catholic faith.

In 1870, the British Parliament passed a new Foreign Enlistment Act only a few weeks after the beginning of the Franco-Prussian War. The new statute clarified the intended purpose of the law, which was to keep private citizens uninvolved in conflicts in which Britain was formally neutral. The law now applied strictly to enlisting in or recruiting for militaries engaged in war and with which Britain was at peace. In other words, a Briton participating in the Franco-Prussian War on either side was a private act performed at the individual's own risk. The law reduced the risk of private actions pulling Britain into such conflicts. The 1870 law also included prohibitions on preparing for and launching military expeditions from British territory. (This provision might have simplified the prosecution of the Confederates operating from Canada in the 1864 St. Alban's raid.) Charges were laid against Canadian militia officers allegedly planning an expedition to Cuba in 1871, but these were ultimately dropped.

Canada’s 1937 Foreign Enlistment Act

Following the 1931 Statute of Westminster, Canada could pursue foreign policy independent of the United Kingdom. However, most statutes relating to foreign policy, like the Foreign Enlistment Act, remained in place and unchanged. The outbreak of the Spanish Civil War during the summer of 1936 brought a renewed interest in the law as large numbers of Britons and Canadians travelled to Spain to fight for the Spanish Republic. In the United Kingdom, the British Foreign Office declared that the Foreign Enlistment Act prohibited military service in Spain. The new law ended some recruiting projects but drove most underground. Canadian officials were not entirely convinced. The law did not seem to fully apply to the Spanish Civil War unless the rebelling Nationalists were granted belligerent status, as had been the case with the Confederacy in the American Civil War.

Motivated by the Communist Party of Canada’s leading role in the recruiting effort and the anxiety this was provoking in Quebec, Minister of Justice Ernest Lapointe sought an improved law that would apply to the circumstances in Spain. The first Canadian Foreign Enlistment Act received royal assent in April 1937, and it was applied to the Spanish Civil War by order in council in July 1937. Recruiting was allowed when conducted by acknowledged consular offices, which excluded Communist Party agents. As in the United Kingdom, these steps drove recruiting underground rather than halted it.

The Royal Canadian Mounted Police (RCMP) investigated the recruiters extensively. The Department of Justice prepared and distributed warrants for arrest and hired prosectors. Everything was in place for simultaneous arrests across Canada to halt the recruiting effort. However, in the summer of 1938, the RCMP advised Lapointe that the enforcement of the law would lead to public backlash. The recruiting effort had stopped due to the failing military position of the Spanish Republic, and the volunteers had become popular folk heroes. The RCMP investigated many of the volunteers for decades after their return from Spain, but these investigations appear to have been motivated by a desire to monitor individuals with Communist Party sympathies and military experience. None of the volunteers were prosecuted.

Canada’s Foreign Enlistment Act remains in effect today. Although Parliament has occasionally amended it to alter some of its definitions and procedural provisions, it is substantively the same statute as passed in 1937.