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CHAPTER THE SIXTH.

OF SERVING, OR PROCURING OTHERS TO SERVE,

FOREIGN STATES.

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Entering into the service of any foreign state without the con- Serving fosent of the king, or contracting with it any other engagement misdemeanor which subjects the party to an influence or controul inconsistent at common with the allegiance due to our own sovereign, is, at common law, law, a high misdemeanor, and punishable accordingly. (a) Indeed it is considered as so high an offence to prefer the interest of a foreign state to that of our own, that any act is criminal which may but incline a man to do so; as to receive a pension from a foreign prince without the leave of the king. (b) But with respect to serving, or procuring others to serve, s. 18. as to

3 Jac. 1. c.4. foreign states, provisions have been inade by several statutes. Subjects going The 3 Jac. 1. c. 4. s. 18. enacts, that “every subject of this realm out of the “ that shall go or pass out of this realm to serve any foreign &c. felony.

prince, state, or potentate, or shall pass over the seas, and shall "voluntarily serve any such foreign prince, state, or potentate, “not having before his going taken the oath of obedience, (c) shalí

be a felon.” The nineteenth section of the statute enacts, that "if any gentleman or person of higher degree, or any person which " hath borne, or shall bear any office, or place of captain, lieutenant, or any other place, charge, or office, in camp, army, or company of soldiers, or conductor of soldiers, shall after go or pass voluntarily out of this realm to serve any such foreign prince, statė, or potentate, or shall voluntarily serve any such

prince, state, or potentate, before that he and they shall become “ bound by obligation, with two sureties, &c.” with a condition, to the effect that he will not be reconciled to the see of Rome, nor enter into any conspiracy against the king (as particularly set forth in the act) “he shall be a felon.”

Upon the construction of this statute it has been considered, Construction.

(a) i East. P. C. c. 2. s. 23. p. 81. 4 Blac. Com. 122.

(6) i Hawk. P. C. c. 22. s. 3. 4 Blac. Com. 121. 3 Inst, 144.

(c) The oath is set forth in the act:

but it has been since taken away by } W. and M. sess. 1. c. 8. s. 2. and new oaths of allegiance and supremacy enjoined in its room.

59 G. 3. c. 69.

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that if a party go out of the realm with intent to serve a foreign state, although there be no service in fact; or if a party do actually so serve, though he did not go over for that purpose, but upon

some other occasion, it will be within the statute. (d) Trial.

The trial of an offence against this statute is to be where the offence is committed, which is at the place where the party passed out of the kingdom. (2)

The statute 59 Geo. 3. c. 69. reciting that the enlistment or Any subjects engagement of his Majesty's subjects to serve in war in foreign of his Majesty enlisting or

service, without his Majesty's licence; and the fitting out, and engaging to equipping, and arming of vessels by his Majesty's subjects, withenlist or serve out his Majesty's licence, for warlike operations in or against in foreign ser- the dominions or territories of any foreign prince, state, &c. or gaging to go against the ships, goods, or merchandize, of any foreign prince, into a foreign state, &c., might be prejudicial to, and tend to endanger the

peace and welfare of this kingdom, repeals the statutes, 9 Geo. 2. list, &c. with- c. 30. and 29 Geo. 2. c. 17., and also the two Irish statutes, 11 out licence,

Geo. 2. and 19 Geo. 2.; and then enacts, that “if any natural born &c.; and any

“ subject of his Majesty, his heirs and successors, without the curing or at- “ leave or licence of his Majesty, &c. for that purpose first had tempting to

6 and obtained under the sign manual of his Majesty, his heirs or to enlist, &c. successors, or signified by order in council, or by proclamation

“ of his Majesty, his heirs or successors, shall take or accept, or deemed guilty “ shall agree to take or accept, any military commission, or shall meanor, and “ otherwise enter into the military service as a commissioned or punishable by66 non-commissioned officer, or shall enlist or enter himself to enfine and imprisonment.

“ list, or shall agree to enlist or to enter himself to serve as a “soldier, or to be employed or shall serve in any warlike or mili

tary operation, in the service of, or for, or under, or in aid of, any foreign prince, state, potentate, colony, province, or part of any province or people, or of any person or persons exercising, or assuming to exercise, the powers of government in or over

any foreign country, colony, province, or part of any province, or “people, either as an officer or soldier, or in any other military “ capacity; or if any natural born subject of his Majesty shall, « without such leave or licence as aforesaid, accept, or agree to “ take or accept, any commission, warrant, or appointment, as an " officer, or shall enlist or enter himself, or shall agree to enlist or “ enter himself, to serve as a sailor or marine, or to be employed “ or engaged, or shall serve in and on board any ship or vessel of

war, or in and on board any ship or vessel used or fitted out, or

equipped or intended to be used for any warlike purpose, in the “ service of, or for, or under, or in aid of, any foreign power, “prince, state, potentate, colony, province, or part of any province,

or people, or of any person or persons exercising, or assuming to “exercise, the powers of government in or over any foreign coun

try, colony, province, or part of any province, or people; or if

any natural born subject of his Majesty shall, without such leave « and licence as aforesaid, engage, contract, or agree to go, or shall

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(d) 3 Inst. 80. 1 East. P. C. c. 2. S. 23. p. 82.

(e) 3 Inst. 80. 3 Jac. 1. c. 4. s. 36.

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go to any foreign state, country, colony, province, or part of any “ province, or to any place beyond the seas, with an intent or in

order to enlist, or enter himself to serve, or with intent to serve, “ in any warlike or military operation whatever, whether by land “ or by sea, in the service of, or for, or under, or in aid of any

foreign prince, state, potentate, colony, province, or part of any

province, or people, or in the service of, or for, or under, or in “aid of, any person or persons exercising, or assuming to exercise, “the powers of government in or over any foreign country, colony,

province, or part of any province, or people, either as an officer or a

soldier, or in any other military capacity, or as an officer, or sailor, “or marine, in any such ship or vessel as aforesaid, although no “enlisting money, or pay, or reward, shall have been, or shall be, “ in any or either of the cases aforesaid, actually paid to or re“ceived by him, or by any person to or for his use or benefit; or “ if any person whatever, within the united kingdom of Great “ Britain and Ireland, or in any part of his Majesty's dominions “ elsewhere, or in any country, colony, settlement, island, or place,

belonging to or subject to his Majesty, shall hire, retain, engage, “or procure, or shall attempt or endeavour to hire, retain, engage,

or procure, any person or persons whatever to enlist, or to enter " or engage to enlist, or to serve or to be employed in any such “service or employment as aforesaid, as an officer, soldier, sailor, “ or marine, either in land or sea service, for, or under, or in aid “of, any foreign prince, state, potentate, colony, province, or any “ part of any province, or people, or for, or under, or in aid of, any

person or persons exercising, or assuming to exercise, any

powers of government as aforesaid; or to go, or to agree to go, “ or embark, from any part of his Majesty's dominions, for the "purpose or with intent to be so enlisted, entered, engaged, or

employed, as aforesaid, whether any enlisting money, pay, or “reward, shall have been, or shall be, actually given or received or "not; in any or either of such cases, every person so offending “shall be deemed guilty of a misdemeanor, and upon being con“ victed thereof, upon any information or indictment, shall be “punishable by fine and imprisonment, or either of them, at the “ discretion of the court before which such offender shall be con- victed.” (a)

The seventh section of the statute enacts, that “if any person, Any person “ within any part of his Majesty's dominions beyond the seas, “ shall, without the leave and licence of his Majesty for that pur- ping, &c. or

cence equippose, first had and obtained as aforesaid, equip, furnish, fit out, procuring to

or arın, or attempt or endeavour to equip, furnish, fit out, be equipped, “ or arm, or procure to be equipped, furnished, fitted out, or armed, sel, with intent “or shall knowingly aid, assist, or be concerned in the equipping, that it shall “ furnishing, fitting out, or arming of, any ship or vessel, with be employed “ intent or in order that such ship or vessel shall be employed in of any foreign " the service of any foreign prince, state, or potentate, or of any prince, &c. or

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(a) S. 3. contains a proviso excepting persons from the operation of the act who shall have enlisted, &c. or

procured others to enlist, &c. before the time therein specified.

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with whom his

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to cruize, &c. “ foreign colony, province, or part of any province, or people, or against any

“ of any person or persons exercising, or assuming to exercise, prince, &c.

any powers of government in or over any foreign state, colony, Majesty sball “province, or part of any province, or people, as a transport or not be at war, “ store ship, or with intent to cruize or commit hostilities against guilty of a misdemeanor. any prince, state, or potentate, or against the subjects or citi

“ zens 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

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 misde“ meanor, and shall, upon conviction thereof, upon any informa“tion 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.” (6) Any person The eighth section enacts, “ that if

so that if any person in any part

of withoutlicence “ the United Kingdom of Great Britain and Ireland, or in any increasing, or procuring to

part of his Majesty's dominions beyond the seas, without the be increased, “ leave and licence of his Majesty for that purpose first had and force of any

“ obtained as aforesaid, shall, by adding to the number of the ship, &c. in the guns of such vessel, or by changing those on board for other service of any

guns, or by the addition of any equipment for war, increase or foreign prince, « augment, or procure to be increased or augmented, or shall be misdemeanor. “ 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 Śwar, cruizer, or armed vessel, in the service of any foreign

prince, state, or potentate, or of any person or persons exercis“ing, 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 controul 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 mis“ demeanor, and shall, upon being convicted thereof, upon any “ information or indictment, be punished by fine and imprison

ment, or either of them, at the discretion of the court before

“ which such offender shall be convicted.” Apprehension Any justice of peace residing at or near any port or place within of offenders; the United Kingdom, where any offence made punishable by this

act as a misdemeanor shall be committed, may issue his war

the warlike

(6) And the ship, with the tackle, &c. is to be forfeited, and may be

seized by the officers of excise, &c. s. 7.

been commit

rant for the apprehension of the offender, to bring him before the same or any other justice, who may commit unless bail is given. (a)

It is further enacted, that all such offences as shall be com- And trial for mitted within that part of the United Kingdom called England, offences comshall be tried in the Court of King's Bench at Westminster, and mitted within the venue laid at Westminster, or at the assizes, or session of kingdom. 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. (b)

The statute also provides for the apprehension of offenders, Apprehension when the offence shall have been committed out of the United and trial of Kingdom, and for their trial in any superior court of his Majesty's where the ofdoininions competent to try, and having jurisdiction to try cri- fences have minal offences, at the place where the offence shall have been

ted out of the committed. (c) And with respect to offences committed out of united kingthe United Kingdom, the ninth section enacts, that they may be dom. prosecuted in the Court of King's Bench at Westminster, the venue being laid at Westminster, in the county of Middlesex. (d)

The mutiny act, 6 Geo. 4. c. 5. s. 155. enacts “ that if any 6 G. 4. c.5. s. person or persons shall in any part of his Majesty's dominions, 155. Persons “ directly or indirectly persuade or procure any soldier or sol- soldiers to de“diers in the service of his Majesty, his heirs or successors, to sert, to be pudesert or leave such service as aforesaid, every such person or

nished by fine

or imprisonpersons so offending as aforesaid, and being thereof lawfully ment, or both. “convicted, shall suffer such punishment by fine or imprison

ment, or both, as the court before which the conviction may “ take place shall adjudge." It may be observed, though not strictly applicable to the sub- Disobedience

to the king's ject of this Chapter, that disobedience to the king's letter to a subject commanding him to return from beyond the seas, or to return, or to the king's writ of Ne exeat regno, commanding a subject to stay stay at home, at home, is a high misprision and contempt. (i) And it is also a assist the king high offence to refuse to assist the king for the good of the public, in council or either in councils, by advice, if called upon, or in his wars by per- war. sonal service for the defence of the realm against a rebellion or (a) Sect. 4.

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s. 12. the penalties of the act are not (6) Ibid.

to extend to any person entering into (c) Ibid.

the service of any prince, &c. in Asia, (d) By s. 5. vessels with persons on with leave from the Governor Geneboard engaged in foreign service may ral in Council, &c. at Bengal. be detained in any part of his Ma- (i) 4 Blac. Com. 122. And if the jesty's dominions, information being subject neglects to return from belaid upon oath. By s. 6. a penalty is yond the seas, when commanded, imposed on masters of vessels, &c. his lands shall be seised till he does knowingly taking on board persons return, 1 Hawk. P. C. c. 22. s. 4. enlisted contrary to the act. But by

commands to

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