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Of seducing Soldiers, &c. to serve Foreign States. [BOOK II. invasion: (k) 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. (1)

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

(1) 4 Bla. Com. 122. Lamb. Eir. 315.

CHAPTER THE SEVENTH.

OF SEDUCING SOLDIERS AND SAILORS TO DESERT OR MUTINY.

In consequence of the attempts of evil disposed persons by the 37 G. 3. c. 70. publication of written or printed papers, and by malicious and seducing soladvised speaking, to seduce soldiers and sailors from their duty felony

without and allegiance to his Majesty, the 37 Geo. 3. c. 70. was passed, benefit of enacting “ that any person who shall maliciously and advisedly clergy. " endeavour to seduce any person or persons serving in his “ Majesty's forces by sea or land, from his or their duty and alle“ giance 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.” 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 con-
tained 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 pro-
vided by the second section, that any offence against this act,
whether committed on the high seas or in England, may be pro-
secuted and tried before any court of oyer and terminer, or gaol Triat.
delivery, for any county in England, as if the said offence had
been therein conimitted. It was decided that a sailor in a sick
hospital where he had been for thirty days, and therefore was not
entitled to pay, nor liable 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.(a)

It has been decided, that an indictment upon this statute need Indictment.not set out the means used for seducing the soldier from his duty and allegiance; and that 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 traitor. ons and mutinous practices, may be charged in one count of the indictment. (b)

(6) Rex v. Tierney, Mich. T. 1804. East. P.C. c. 2. S. 33. p. 92. i Bos. Russ. and Ry. 74.

and Pul. 180. (6) Fuller's case, 2 Leach 790. 1 VOL, I.

H

This act of the 37 Geo. 3. c. 70. was only temporary: but, after having been continued from time to time by different statutes, was recently 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 statute 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 late mutiny act, 6 Geo. 4. c. 5. s. 155., subjects persons so offending to punishment by fine

or imprisonment, or both. I G. 1. c. 47. The statute 1 Geo. 1. c. 47. enacts, that if any person (other persons per

than enlisted soldiers, against whom it is stated suficient remedy suading, &c. soldiers to de- was already provided by law,) shall, in Great Britain, Ireland, sert, liable to Jersey, or Guernsey, persuade or procure any soldier to desert, he imprisonment. shall forfeit 401. 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. 6 G. 4. c. 5.

Sect. 155 of the 6 G. 4. c. 5. enacts that if any person or persons
shall, in any part of His Majesty's dominions, directly or indi-
rectly persuade or procure any soldier or soldiers in the service
of his Majesty, his heirs or successors, to desert or leave such
service, every such person or persons so offending and being law-
fully convicted, shall suffer such punishment by fine or imprison-
ment, or both, as the court before which the conviction may take
place shall adjudge. The punishment of the pillory was added.
to the imprisonment by former mutiny acts, but a statute 56 Geo.
3. c. 138. enacts, that from the passing of that act judgment shall
not be given and awarded against any person convicted of any
offence, that such person do stand in or upon the pillory, except
for the offences of perjury and subornation of perjury, any law,
statute, or usage to the contrary notwithstanding. The statute
1 Geo. 1. c. 47. also added the punishment of the pillory; and
upon an information filed in the Court of King's Bench upon that
statute, prior to the 56 Geo. 3. c. 138. and tried at the assizes, it
was held that it was necessary, if the court awarded imprison-
ment in addition to the 401. penalty, to award the pillory also. (c)
It was also decided in the same case, that the Court of King's
Bench was the proper Court to award the punishment upon such
information, and that it ought not to be awarded at the assizes
where the trial and conviction took place. (d) The 6 Geo. 4. c. 5.
s. 154. imposes a pecuniary penalty on persons concealing de-

serters. Consequences With respect to the consequences to the party deserting, it of desertion to the party de

be observed, that desertion in time of war was made a capital

may. serting.

crime by 18 Hen. 6. c. 19. enforced by 2 and 3 Edw. 6. c. 2. s. 6. repealed as to the felony by 1 M. sess. 1. c. 1. revived by 4 and 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

(c) Rex v. Read, 16 East. 404.

(d) Id. Ibid.

acts for punishing mutiny and desertion, a more compendious and convenient system of military coercion has obtained. (e) The mutiny act, 6 Geo. 4. c. 5. 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 forms of 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.

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

CHAPTER THE EIGHTH.

OF PIRACY.

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.

be committed. III. Of the court by which it may be tried.

SECT. I.

of Piracy at Common Law, and by Statutes. Piracy at The offence of piracy at common law consists in committing common law. those 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) Piracy by The offence of piracy is also provided against by the enactments Ili and iż w. of several statutes. The 11 and 12 W. 3. c. 7. s. 8. enacts, that 3. c. 7. s. 8. “ if any of his Majesty's natural born subjects, or denizens of this as to acts done “ kingdom, shall commit any piracy or robbery, or any act of hoscommission of

tility against others his Majesty's subjects, upon the sea, under a foreign state. “ colour of any commission from any foreign prince or state, or

pretence of authority from any person whatsoever, such offender 2. c. 30. as to piracy com

“ and offenders shall be deemed, adjudged, and taken to be pirates, mitted under “ felons, and robbers ;” and being duly convicted thereof, accordan enemy's commission.

And 18 Geo.

(a) I Hawk. P. C. c. 37. s. 4. 4 Blac. blood, at least where the conviction Com. 72. 2 East. P. C. c. 17. s. 3. p. is before the Admiralty jurisdiction ;

though the contrary is holden by con(6) I Hawk. P. C. c. 37. s. 13. 3 siderable authority upon attainder beInst. 112. 2 East. P. C. c. 17. s. 3. p. fore commissioners, under the statute 796., where it is said that the offence

of Hen. 8. does not extend to corruption of

796.

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