or citizens of any prince, state, or potentate, or against the persons exercising or assuming to exercise the powers of government in any colony, province, or part of any province, or country, or against the inhabitants of any foreign colony, province, or part of any province or country, with whom his Majesty shall not then be at war; or shall, within the United Kingdom, or any of his Majesty's dominions, or in any settlement, colony, territory, island. or place belonging or subject to his Majesty, issue or deliver any commission for any ship or vessel, to the intent that such ship or vessel shall be employed as aforesaid, every such person so offending shall be deemed guilty of a misdemeanor, and shall, upon conviction thereof, upon any information or indictment, be punished by fine and imprisonment, or either of them, at the discretion of the Court in which such offender shall be convicted."(d) Sec. 8. "If any person in any part of the United Kingdom of Great Britain and Ireland, or in any part of his Majesty's dominions beyond the seas, without the leave and license of his Majesty for that purpose first had and obtained as aforesaid, 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 cruiser, 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, cruiser, 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 per[*139 sons 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."

Where the defendants were indicted under the 59 Geo. 3, c. 69, for engaging and procuring at Liverpool men to enlist as sailors in the Confederate service; and it appeared that the men had been induced by the defendants to sign articles at Liverpool to serve in the Japan on a voyage to China, and they embarked on board her, and she sailed to the British Channel, and anchored off Brest, and the next day a captain of the Confederate navy enlisted the men in that service; Cockburn, C. J., held that the question was, whether the defendants procured the sailors to embark at Liverpool for the purpose of their being employed in the service of the Confederate States. If they procured the sailors to embark on board the Japan and sail to a foreign country, to be there enlisted in the Confederate service, they were guilty, and it was sufficient if that was the intention of the defendants, although the men themselves did not go with that intention.(dd)

An indictment on the 59 Geo. 3, c. 69, contained counts for causing, &c., men to enlist in the Confederate service as sailors, &c., and for counselling men here to enlist in that service abroad, and for assisting the equipment of a vessel for that service. An old iron steam gunboat, dismantled of all her guns and warlike equipments, and stripped of her armor-plates, masts, spars, and sails, and with only her engines and boilers in her, was sold by the government to a firm, who bought her with a view to her being engaged in the Confederate service. Leave was obtained from the Admiralty to have the vessel docked and repaired at Sheerness, and the defendant, who was one of the dockyard officials, had rendered every assistance. There were no warlike equipments done, but mere repairs or fittings as a mercantile vessel. The defendant had held himself out as engaging men on board the vessel for a trial trip previously to her going on a voyage to China; and had engaged men, or sent them on board to be engaged, as stokers, firemen, or engineers; but none of the men had any other idea than that the vessel was destined for China.

(d) And the ship, with the tackle, &c., is to be forfeited, and may be seized by the officers of excise, &c., sec. 7.

(dd) Reg v. Jones, 4 F. & F. 25.

The vessel went to Calais, and there the Confederate flag was hoisted, and officers came on board and took the command of her as a Confederate vessel, and the men were invited to enlist in the Confederate service, but most of them declined. The defendant was on board whilst the Confederate flag was flying, in company with the officers, and when he came back to Sheerness he continued to interest himself in sending men over for the service of the vessel, though only in connection with the locomotive power. The jury were directed-1st. That the main question was, whether the defendant was a party to the engagement of the men with a view to enlistment in the Confederate service. 2d. That the acts of the defendant after he must have been aware of the destination of the vessel, though not the subjectmatter of the indictment, might be taken into consideration as throwing light upon the intention with which he did the acts in the earlier part of the transaction, which were the subject-matter of the indictment. 3. That the trifling repairs done to the engines, &c., did not amount to an equipment. 4. That if the defendant procured the men to enter into engagements nominally for a trial trip, but with the ulterior purpose on his part of getting them into a position in which they might be induced to enlist in the Confederate service, the defendant was guilty; but if his object in engaging the men was simply that the vessel should go out on a trial trip and come back, he was not guilty. 5. That the term "sailors" in the statute included persons engaged as stokers, firemen, and engineers, for the purpose of navigating the vessel. 6. That there must be a hiring or enlistment in the United Kingdom to bring the case within the statute. 7. That such an offence had been committed in England, or the offence of counselling its commission was not proved.(ee)

Per

The building in pursuance of a contract, with intention to sell and deliver to a belligerent power the hull of a vessel suitable for war, but unarmed and not equipped, furnished, or fitted out with anything which enables her to cruise or commit hostilities, or do any warlike act whatever, is not a violation of the 59 Geo. 3, c. 69. The equipment forbidden by that Act in an equipment of such warlike character as enables a ship on leaving a port of this kingdom to cruise or commit hostilities. Per Pollock, C. B., and Bramwell, B. If the character of equipment is doubtful, it may be explained by evidence of the intent of the parties. Per Channell, B. The Act includes a case where the equipment is such that, although the ship when it leaves a port in this kingdom is not in a condition at once to commit hostilities, is yet capable of being used for war, and the intent is clear that it is to be used for war. Per Channell, B. Any act of equipping, furnishing, or fitting out done to the hull or vessel, of whatever nature or character that act may be, if done with the prohibited intent, is within the statute. Pigott, B. On the trial of an information respecting the seizure of a vessel in a port at Liverpool for an alleged violation of the Act for equipping her for the service of a belligerent state, Bramwell, B., was of opinion that a right direction would be, that if the jury were satisfied that the parties concerned were equipping, or arming, or attempting so to do, the ship claimed, with intent that it should be employed in the service of a foreign power to cruise or commit hostilities against others as alleged, they should find for the Crown; but such equipment or attempted equipment must be of a warlike character, so that by means of it she is in a condition more or less effective to cruise or commit hostilities; otherwise find for the claimants. Channell, B., was of opinion that the questions left to the jury should have been1. Was there intent, on the part of any one having a controlling power over the vessel, that she should be employed in the service of the Confederate States, to cruise or commit hostilities against the United States? 2. If so, was she equipped, fitted out, or furnished in a British port in order to be employed to cruise, &c.? 3. If not equipped, was there any attempt to equip her in a British port in order that she should be so employed? 4. Or did any one knowingly assist, &c., in such equipment in a British port? Pigott, B. The jury should have been directed to see-1, whether the equippers or the purchasers had the prohibited intent; and, 2, whether with such intent they had done any act towards equipping, furnishing,

(ee) Reg. v. Rumble, 4 F. & F. 175.

or fitting out the ship, beyond the mere work of building the hull of the vessel, or had attempted to do so.(f)

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 (e) It is further enacted, that all such offences as shall be committed 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.(ƒ)

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.(g) And with respect to offences committed out of the United Kingdom, by sec. 9, they may be prosecuted in the Court of King's Bench at Westminster, the venue being laid at Westminster, in the county of Middlesex. (h)

This Act creates an offence against the state, and if any offence be committed against the act, the Court of Queen's Bench will not grant a criminal information for such offence on the application of a private prosecutor, but leave the case to be dealt with like other public offences.(i)

The annual Mutiny Act contains a provision by which any person who, in any part of her Majesty's dominions, directly or indirectly procures any soldier to desert, or attempts to procure or persuade any soldier to desert, is punishable summarily.

It may be observed, though not strictly applicable to the subject of this chapter, that disobedience to the King's letter to a subject commanding him to return from beyond the seas, or to the King's writ of ne exeat regno, commanding a subject to stay at home. is a *high misprison and contempt.(k) And it is also a high offence to refuse to assist the King for the good of the public, either in [*140 councils, by advice, if called upon, or in his wars by personal service for the defence of the realm against a rebellion or invasion;(7) 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 Hen. 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. (m)

(f) Attorney General v. Sillem, 2 H. & C. 431. (ƒ) Ibid.

(e) Sec. 4.
(9) Ibid.

(h) By sec. 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 sec. 6 a penalty is imposed on masters of vessels, &c., knowingly taking on board persons enlisted contrary to the Act. But by sec. 12 the penalties of the Act are not to extend to any persons entering into the service of any prince, &c., in Asia, with leave from the Governor-General in Council, &c., at Bengal.

(i) Ex parte Crawshay, 8 Cox C. C. 356.

(k) 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,

8. 4.

(2) 1 Hawk. P. C. c. 22, s. 2.

(m) 4 Blac. Com. 122; Lamb. Eir. 315.

141

*141]

OF SEDUCING SOLDIERS AND SAILORS TO DESERT, &c., [BOOK II.

*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 endeavor 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 endeavor 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."(a) By sec. 3, 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 misprison of high treason; and 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 by sec. 2, 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 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(b) beyond the seas for the term of the natural life of such person, or for any term not less than fifteen (c) years, or be imprisoned for any term not exceeding three years.

Sec. 2. "In awarding the punishment of imprisonment for any offence punishable under this Act, it shall be lawful for the Court to direct such punishment to be with or without hard labor in the common gaol or house of correction, and also to direct that the offender shall be kept in solitary confinement for any *142] portion or portions of such imprisonment, or of such imprisonment with hard labor, 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."

A sailor in a sick hospital, where he had been for thirty days, and who therefore was not entitled to pay, nor liable for what he then did to answer before a court martial, is 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. (d)

An indictment upon this statute need not set out the means used for seducing the soldier from his duty and allegiance; and it need not aver that the prisoner knew the person endeavored to be seduced to be a soldier. It seems also that a double act, namely, that the prisoner endeavored to incite a soldier to commit mutiny, and also to commit traitorous and mutinous practices, may be charged in one count of the indictment.(e)

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

(a) The Act contains no provisions 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 Geo. 4, c. 28, sec. 8, 9, and 1 Vict. c. 90, s. 5, see ante, p 3.

(b) Penal servitude by the 20 & 21 Vict. c. 3, s. 2, ante, p. 4.

(c) Not less than seven years by the 9 & 10 Vict. c. 24, s. 1; and not less than three years' penal servitude by the 20 & 21 Vict. c. 3, s. 2, ante, p. 3, 4.

(d) Rex v. Tierney, Mich. T. 1804, R. & R. 74.

(e) Fuller's case, 2 Leach 790; 1 East P. C. c. 2, s. 33, p. 92; 1 Bos. & Pul. 180.

By the 1 Geo. 1, c. 47,(f) persons persuading or procuring soldiers to desert are subjected to a penalty, and under certain circumstances to imprisonment; and the annual Mutiny Act subjects persons so offending to punishment on summary conviction.

The 1 Geo. 1, c. 47, enacts, that if any person (other than enlisted soldiers, against whom it is stated sufficient remedy was already provided by law), shall, in Great Britain, Ireland, Jersey, or Guernsey, persuade or procure any soldier to desert, he shall forfeit £40, to be recovered by any informer; and if he has not property to that amount, or from the heinous circumstances of the crime it shall be thought proper, the Court before whom he is convicted shall imprison him, not exceeding six months. (g) And the government of the Navy Act, 24 & 25 Vict. c. 115, s. 13, makes every person who endeavors to seduce from his duty or allegiance any person belonging to the royal navy subject to the Act, and liable to the punishments thereby imposed.

With respect to the consequences to the party deserting, it may be observed, that desertion in time of war was made a capital crime by 18 Hen. 6, c. 19, enforced by 2 & 3 Edw. 6, c. 2, s. 6, repealed as to the felony by 1 M. sess. 1. c. 1, revived by 4 & 5 Ph. & M. c. 3, s. 9, and extended to mariners and gunners by 5 Eliz. c. 5, s. 27.(h). But these statutes are now fallen into disuse, as well on account of the manner of the retaining soldiers therein *referred to being [*143 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.() The annual Mutiny Act, 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 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.

*CHAPTER THE EIGHTH.

OF PIRACY.

[*144

IN treating shortly of this offence, we may consider-I. Of Piracy at common law, and by statutes. II. Of the places in which the offence may be committed. III. Of the court by which it may be tried.

Sec. I-Of Piracy at Common Law and by Statutes.

THE offence of piracy at common law consists in committing those acts of robbery and depredation upon the high seas which, if committed upon land, would have amounted to felony there. (a) It is not a felony which was triable by jury at common law, but it was only punishable by the civil law before the 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,

(f) Quære, whether this Act be not virtually repealed. See 31 Geo. 3, c. 32; 37 Geo. 3, c. 70; 10 Geo. 4, c. 7; and 7 Will. 4, and 1 Vict. c. 91.

(9) The punishment of pillory was also added, but that is abolished by the 56 Geo. 3, c. 138, and the 7 Will 4, and 1 Vict. c. 23.

(h) Quære, whether some, if not all, of these Acts are not repealed by 2 Geo. 3, c. 20,

B. 144.

(i) 1 East P. C. c. 2, s. 34, p. 93.

(a) 1 Hawk. P. C. c. 37, s. 4; 4 Blac. Com. 72; 2 East P. C. c. 17, s. 3, p. 796.