vice of any foreign prince, &c., guilty of a misdemeanor. Apprehension of offenders. And trial for offences com the United Kingdom. shall, by adding to the number of the guns of such vessel, or by changing those on board for other guns, or by the addition of any equipment for war, increase or augment, or procure to be increased or augmented, or shall be knowingly concerned in increasing or augmenting the warlike force of any ship, or vessel of war, or cruizer, or other armed vessel, which at the time of her arrival in any part of the United Kingdom, or any of his Majesty's dominions, was a ship of war, cruizer, or armed vessel, in the service of any foreign prince, state, or potentate, or of any person or persons exercising, or assuming to exercise any powers of government in or over any colony, province, or part of any province or people belonging to the subjects of any such prince, state, or potentate, or to the inhabitants of any colony, province, or part of any province or country under the control of any person or persons so exercising, or assuming to exercise the powers of government, every such person so offending shall be deemed guilty of a misdemeanor, and shall, upon being convicted thereof, upon any information or indictment, be punished by fine and imprisonment, or either of them, at the discretion of the Court before which such offender shall be convicted." Any justice of peace residing at or near any port or place within the United Kingdom, where any offence made punishable by this act as a misdemeanor shall be committed, may issue his warrant for the apprehension of the offender, to bring him before the same or any other justice, who may commit unless bail is given. (h) It is further enacted, that all such offences as shall be committed mitted within within that part of the United Kingdom called England, shall be tried in the Court of King's Bench at Westminster, and the venue laid at Westminster, or at the assizes, or session of oyer and terminer and gaol delivery, or at any quarter or general sessions of the peace for the county or place where the offence was committed; that when committed in Ireland they shall be prosecuted in the Court of King's Bench at Dublin, and the venue there laid, or at any assizes, &c., for the county or place where the offence was committed; and when committed in Scotland that they shall be prosecuted in the Court of Justiciary, or any other court competent to try criminal offences committed within the county, &c., within which the offence was committed. (i) Apprehension and trial of offenders where the of fences have been commit ted out of the United Kingdom. 3 Vict. c. 6, The statute also provides for the apprehension of offenders, when the offence shall have been committed out of the United Kingdom, and for their trial in any superior Court of his Majesty's dominions competent to try, and having jurisdiction to try criminal offences, at the place where the offence shall have been committed. (j) And with respect to offences committed out of the United Kingdom, the ninth section enacts, that they may be prosecuted in the Court of King's Bench at Westminster, the venue being laid at Westminster, in the county of Middlesex. (k) The Mutiny Act, 3 Vict. c. 6, s. 25, enacts "that any person who (h) Sect. 4. (k) By s. 5, vessels with persons on board engaged in foreign service may be detained in any part of his Majesty's dominions, information being laid upon oath. By s. 6 a penalty imposed on masters of vessels, &c. knowingly taking on board persons enlisted contrary to the act. But by s. 12 the penalties of the act are not to extend to any person entering into the service of any prince, &c., in Asia, with leave from the Governor-General in Council, &c., at Bengal. soldiers to de ment, or both return, or to shall in any part of her Majesty's dominions, directly or indirectly per- s. 25. Persons suade any soldier to desert, shall suffer such punishment by fine or im- persuading prisonment, or both, as the Court before which the conviction may take sert, to be puplace shall adjudge; and every person, who shall assist any deserter, nished by fine knowing him to be such, in deserting or concealing himself, shall for- or imprisonfeit for every such offence the sum of twenty pounds." It may be observed, though not strictly applicable to the subject of Disobedience this chapter, that disobedience to the King's letter to a subject com- to the king's manding him to return from beyond the seas, or to the King's writ of commands to ne exeat regno, commanding a subject to stay at home, is a high misprision and contempt. (1) And it is also a high offence to refuse to assist the King for the good of the public, either in councils, by advice, if called upon, or in his wars by personal service for the defence of the realm against a rebellion or invasion: (m) under which class may be ranked the neglecting to join the posse comitatus, or power of the county, being thereunto required by the sheriff or justices, according to the statute 2 Henry 5, c. 8, which is a duty incumbent upon all that are fifteen years of age, under the degree of nobility, and able to travel. (n) (1) 4 Blac. Com. 122. And if the subject neglects to return from beyond the seas, when commanded, his lands shall be seized till he does return, 1 Hawk. P. C. c. 22, s. 4. (m) 1 Hawk. P. C. c. 22, s. 2. stay at home, or to refuse to assist the king in council or war. 37 Geo. 3, c. 70, seducing soldiers or sailors felony. Trial. Punishment, for life, &c. CHAPTER THE SEVENTH. OF SEDUCING SOLDIERS AND SAILORS TO DESERT OR MUTINY. In consequence of the attempts of evil disposed persons by the publication of written or printed papers, and by malicious and advised speaking, to seduce soldiers and sailors from their duty and allegiance to his Majesty, the 37 Geo. 3, c. 70, was passed, enacting "that any person who shall maliciously and advisedly endeavour to seduce any person or persons serving in his Majesty's forces by sea or land, from his or their duty and allegiance to his Majesty, or to incite or stir up any such person or persons to commit any act of mutiny, or to make, or endeavour to make, any mutinous assembly, or to commit any traitorous or mutinous practice whatsoever, shall, on being legally convicted of such offence, be adjudged guilty of felony, and shall suffer death, as in cases of felony, without benefit of clergy." (o) The third section of the act provides, that any person tried, acquitted, or convicted, of any offence against this act, shall not be liable to be prosecuted again for the same offence or fact, as high treason, or misprision of high treason; and that nothing in the act contained shall prevent the trial of any person who has not been tried for an offence against this act from being tried for the same as high treason, or misprision of high treason. And it is provided by the second section, that any offence against this act, whether committed on the high seas or in England, may be prosecuted and tried before any court of oyer and terminer, or gaol delivery, for any county in England, as if the said offence had been therein committed. The 1 Vict. c. 91, s. 1, after reciting this act, provides," that if transportation any person shall," after the 1st of October, 1837," be convicted of any of the offences hereinbefore mentioned, such person shall not suffer death or have sentence of death awarded against him or her for the same, but shall be liable, at the discretion of the Court, to be transported beyond the seas for the term of the natural life of such person, or for any term not less than fifteen years, or to be imprisoned for any term not exceeding three years.' Offences Sec. 2 enacts," that in awarding the punishment of imprisonment for any offence punishable under this act, it shall be lawful imprisonment. for the Court to direct such imprisonment to be with or without hard labour in the common gaol or house of correction, and also to direct that the offender shall be kept in solitary confinement for any portion or portions of such imprisonment, or of such imprisonment with hard labour, not exceeding one month at any one time, and not exceeding three months in any one year, as to the Court in its discretion shall seem meet." It was decided that a sailor in a sick hospital where he had been for thirty days, and who therefore was not entitled to pay, nor liable (o) The act contains no provision for the punishment of principals in the second degree and accessories; they are, therefore, punishable, the former in the same manner as principals in the first degree, the latter under the 7 & 8 G. 4, c. 28, s. 8 & 9, and 1 Vict. c. 90, s. 5, see note (t), ante, p. 65. for what he then did to answer before a court martial, was nevertheless a person serving in his Majesty's forces by sea within this statute, so as to make the seducing him an offence within its provisions. (p) An indictment upon this statute need not set out the means used Indictment. for seducing the soldier from his duty and allegiance; and it need not aver that the prisoner knew the person endeavoured to be seduced to be a soldier. It seems also that a double act, namely, that the prisoner endeavoured to incite a soldier to commit mutiny, and also to commit traitorous and mutinous practices, may be charged in one count of the indictment. (q) The 37 Geo. 3, c. 70, was only temporary: but, after having been continued from time to time by different statutes, was made perpetual (together with an act upon the same subject, passed at the same time in the parliament of Ireland,) by the 57 Geo. 3, c. 7. By the 1 Geo. 1, c. 47, persons persuading or procuring soldiers to desert are subjected to a penalty, and under certain circumstances to imprisonment; and the Mutiny Act, 3 Vict. c. 6, s. 25, subjects persons so offending to punishment by fine or imprisonment, or both. (r) soldiers to de The 1 Geo. 1, c. 47, enacts, that if any person (other than en- 1 Geo. 1, c. 47, listed soldiers, against whom it is stated sufficient remedy was already persons perprovided by law,) shall, in Great Britain, Ireland, Jersey, or Guern- suading, &c., sey, persuade or procure any soldier to desert, he shall forfeit 40%., sert, liable to to be recovered by any informer; and if he has not property to that penalty and amount, or from the heinous circumstances of the crime it shall be imprisonment. thought proper, the Court before whom he is convicted shall imprison him, not exceeding six months. (s) serting. With respect to the consequences to the party deserting, it may Consequences be observed, that desertion in time of war was made a capital crime of desertion to by 18 Hen. 6, c. 19, enforced by 2 & 3 Edw. 6, c. 2, s. 6, repealed the party deas to the felony by 1 M. sess. 1, c. 1, revived by 4 & 5 Ph. and M., c. 3, s. 9, and extended to mariners and gunners by 5 Eliz. c. 5, s. 27. But these statutes are now fallen into disuse, as well on account of the manner of retaining soldiers therein referred to being no longer adopted, as because, since the annual acts for punishing mutiny and desertion, a more compendious and convenient system of military coercion has obtained. (t) The Mutiny Act, 3 Vict. c. 6, s. 1, reciting "that no man can be forejudged of life or limb, or subjected in time of peace to any kind of punishment within this realm, by martial law, or in any other manner than by the judgment of his peers, and according to the known and established laws of the realm; yet that nevertheless, it being requisite for retaining the forces in their duty that an exact discipline be observed, and that soldiers who shall mutiny, or stir up sedition, or desert, be brought to more exemplary and speedy punishment than the usual form of the law will allow," enacts, that if any officer or soldier shall, during the continuance of the act, commit any of the offences therein enumerated, amongst which is desertion, the offender shall suffer death, or such other punishment as shall be awarded by a court martial. (p) Rex v. Tierney, Mich. T. 1804. Russ. & Ry. 74. (9) Fuller's case, 2 Leach, 790. 1 East, P. C. c. 2, s. 33, p. 92. 1 Bos. & Pul. 180. (r) See the section, ante, p. 90,91. CHAPTER THE EIGHTH. OF PIRACY. In treating shortly of this offence, we may consider, I. Of piracy at common law, and by statutes. IL Of the places in which the offence may be committed. III. Of the court by which it may be tried. SECT. I. Of Piracy at Common Law, and by Statutes. Piracy at com- THE offence of piracy at common law consists in committing those mon law. acts of robbery and depredation upon the high seas, which, if committed upon land, would have amounted to felony there. (a) But it is no felony at common law, and it was only punishable by the civil law before the statute 28 Hen. 8, c. 15; and this statute, though it makes the offence capital, and provides for the trial of it according to the course of the common law, by the King's special commission, does not make it a felony; therefore, a pardon of all felonies generally does not extend to it. (b) The offence of piracy is also provided against by the enactments of several statutes. The 11 & 12 Wm. 3, c. 7, s. 8, enacts, "that if any of his Majesty's natural born subjects, or denizens of this kingdom, shall commit any piracy or robbery, or any act of hostility against others his Majesty's subjects, upon the sea, under colour of any commission from any foreign prince or state, or pretence of authority from any person whatsoever, such offender and offenders shall be deemed, adjudged, and taken to be pirates, felons, and robbers;" and being duly convicted thereof, according to that act, or the statute 28 Hen. 8, c. 15, shall suffer such pains of death, (c) and loss of lands, goods, and chattels, as pirates, &c. upon the seas ought to suffer. And the 18 Geo. 2, c. 30, enacts, "that all persons being natural born subjects or denizens of his Majesty, who during any war shall commit any hostilities upon the sea, or in any haven, river, creek, or place, where the admiral or admirals have power, authority, or jurisdiction, against his Majesty's subjects, by virtue or under colour of any commission from any of his Majesty's enemies, or shall be any other ways ways adherent, or giving aid or comfort to his Majesty's enemies upon the sea, or in any haven, river, creek, or place, where (a) 1 Hawk. P. C. c. 37, s. 4. 4 Blac. Com. 72. 2 East, P. C. c. 17, s. 3, p. 796. (b) 1 Hawk. P. C. c. 37, s. 13. 3 Inst. 112. Co. Litt. 391. Moor, 746. 2 East, P. C. c. 17, s. 3, p. 796, where it is said that the offence does not extend to corruption of blood, at least where the conviction is before the Admiralty jurisdiction; though the contrary is holden by considerable authority upon attainder before commissioners, under the statute of Hen. 8. (c) Repealed by 1 Vict. c. 88, s. 1. See s. 2, &c., post, p. 96. |