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33 & 34 Vict. c. 90 (the Foreign Enlistment Act, 1870), which provides that if any British subject shall, without the licence of her majesty (0), within or without her majesty's dominions, accept any commission in the military or naval service of any foreign state at war with any foreign state at peace with her majesty, or as the Act expresses it, “with any friendly state,"—or shall induce
person so to do-or shall quit or attempt to quit her majesty's dominions with intent of accepting such commission ;-he shall, in any of the above cases, be punishable by fine or imprisonment, to the extent of two years, or both (p). And further, that if any person within her majesty's dominions, (without licence from the Crown first obtained,) shall build or equip any ship for the service of any foreign state at war with a friendly state, or shall issue any commission for any such ship, or shall increase the number of her guns or equipment for war, or shall be concerned in augmenting her warlike force ;—such offender shall also be guilty of a misdemeanor, and may be punished in the same manner (9).
Moreover, by the same Act, any ship violating the provisions thereof may be detained, either by the local authority, as defined therein, or by the order of the secretary of state, or the chief executive authority (r).
XV. The offences of desertion or seducing to desert, from the army or navy (s).
(0) A licence for this purpose may either be under the royal sign manual, or by order in council, or by proclamation. (33 & 34 Vict. c. 90, s. 15.)
(P) Sect. 13. The imprisonment may be either with or without hard labour. (Sects. 4, 5, 6.)
(9) As to these enactments of our municipal law (of which only the more important are referred to in the text) in reference to the law of nations on the same subject, vide
post, p. 216. The statute of 33 & 34 Vict. c. 90, is in substitution of an Act on the same subject (59 Geo. 3, c. 69). There was a still earlier one (3 Jac. 1, c. 4), the penalties of which were repealed by 9 & 10 Vict. c. 59.
(r) 33 & 34 Vict. c. 90, ss. 2123.
(8) As to seamen or apprentices deserting from the merchant service, see 17 & 18 Vict. c. 104, s. 243.
These offences are now mainly provided against by the annual Mutiny Acts, and by the Naval Discipline Act, 1866 (t); by which (when committed by persons subject to those Acts) they are placed under the jurisdiction of courts-martial, and punished with such punishment as those courts shall inflict (u).
In addition, however, to these there is a statute 37 Geo. III. c. 70(x), which enacts that any person maliciously endeavouring to seduce any person, serving in the Royal forces by sea or land, from their allegiance; or stirring up any such persons to mutiny or to any traitorous or mutinous practice;-shall be guilty of felony. Under this Act he was made punishable with death ; but by the effect of later statutes, he is now liable, if convicted under its provisions, to penal servitude for life, or any term not less than five years; or to be imprisoned, with or without hard labour or solitary confinement, for any term not more than two years (y).
XVI. Another class of offences ranging itself under the present head, is that of administering unlawful oaths ; or of being engaged in illegal societies.
It is enacted by 37 Geo. III. c. 123, that whoever shall administer or cause to be administered, or shall be present at and consenting to the administering of, or shall himself take, -any oath or engagement intended to bind any person in any mutinous or seditious purpose; or to bind him to belong to any seditious society or confederacy; or to obey any committee, or any person not having legal authority for that purpose; or not to give evidence against any confederate or other person; or not to discover any “ unlawful combination” or illegal act, or illegal oath or (t) 29 & 30 Vict. c. 109.
31 Vict. c. 69. (u) Vide sup. vol. II. pp. 590, (y) 7 Will. 4 & 1 Vict. c. 91; 9 & 596, n.
10 Vict. c. 24; 16 & 17 Vict. c. 99; (2) Made perpetual by 57 Geo. 3, 20 & 21 Vict. c. 3; 27 & 28 Vict. c. 7. A statute on this subject, 1 Geo. 1, c. 47, is repealed by 30 &
engagement,-shall be guilty of felony; and he may be sentenced to penal servitude for not more than seven nor less than five years (2).
And further, that to have taken such oath or engagement under compulsion shall be no excuse, unless the person compelled shall within four days after he has an opportunity, disclose the whole of the case to a justice of the peace; or, in the case of a soldier or seaman, to his commanding officer.
Moreover, by 39 Geo. III. c. 79; 52 Geo. III. c. 104 ; 57 Geo. III. c. 19; and 2 & 3 Vict. c. 12;-all societies are to be deemed unlawful combinations of which the members shall take such oaths or engagements as are expressly prohibited by 37 Geo. III. c. 123, or are not required by law, or of which the members shall subscribe any unauthorized test or declaration; as well as all societies which shall comprise members whose names shall be unknown to the society at large, and societies consisting of different branches, which shall elect committees or delegates to communicate with other societies: and persons becoming members of such unlawful combinations, or aiding, abetting, or supporting the same, may be either proceeded against by way of summary conviction before justices, or they may be prosecuted by indictment,-in which case they may be sentenced to penal servitude for not more than seven nor less than five years, or imprisoned for any time not exceeding two years (a). On the other hand, regular lodges of Freemasons, societies duly established under the statutes in force relating to friendly societies, meetings of Quakers, and meetings of a religious or charitable nature only, do not come within the prohibiting enactments of the Acts; and such of their provisions as relate to oaths and engagements do not
(7) 37 Geo. 3, c. 123, s. 1; 16 & 17 Vict. c. 99 ; 20 & 21 Vict. c. 3; 27 & 28 Vict. c. 47.
(a) See 39 Geo. 3, c.79; 52 Geo.3,
c. 104; 57 Geo. 3, c. 19; 2 & 3 Vict. c. 12; 9 & 10 Vict. c. 33 ; 16 & 17 Vict. c. 99; 20 & 21 Vict. c. 3; 27 & 28 Vict. c. 47.
extend to any form of declaration approved by two justices, and registered as in the Acts provided.
By one of the above Acts, viz. by 52 Geo. III. c. 104, it is also provided that every person who shall administer or cause to be administered, or be aiding or assisting in the administration of, any oath or engagement intending to bind the party sworn to the commission of any treason, murder or capital felony,-shall be guilty of felony; and he may be sentenced to penal servitude for life, or for not less than five years, or be imprisoned, with or without hard labour and solitary confinement, for any term not more than two years (6). And it is further enacted, that every person taking such oath or engagement, (not being compelled,) shall also be guilty of felony, and liable to penal servitude for life, or such time as the court may direct; and that compulsion shall be no excuse, unless the party compelled makes discovery of the case within fourteen days (c).
XVII. [We shall conclude the chapter with a notice of certain miscellaneous contempts against the royal prerogative, not properly falling under any of the preceding heads. Such as, 1. Concealing treasure trove, which, (as we have elsewhere explained,) belongs to the sovereign or his grantees by prerogative royal (d); and the concealment of which was formerly punishable by death (e), but now only by fine and imprisonment (f). 2. Preferring the interests of a foreign potentate to those of our own, or doing or receiving anything that may create an undue influence in favour of such extrinsic power; as by taking a pension from any foreign prince without the consent of the Crown (g). 3. Disobeying the sovereign's lawful
(6) 52 Geo. 3, c. 104; 7 Will. 4 & 1 Vict. c. 91; 9 & 10 Vict. c. 24, s. 1; 16 & 17 Vict, c. 99; 20 & 21 Vict. c. 3; 26 & 27 Vict. c. 47.
(c) 52 Geo. 3, c. 104, ss. 1, 2.
(d) Vide sup. vol. II. p. 546.
[command ;—whether by writs issuing out of his courts of justice; or by a summons to attend his privy council; or by letter from him to a subject, commanding him to return from beyond the seas, (for disobedience to which, his lands shall be seized till he does return, and himself afterwards punished). 4. Disobedience to any Act of Parliament, where no particular penalty is assigned. All these are given in the books as instances of misprisions and contempts; the general punishment whereof are fine and imprisonment, at the discretion of the courts of justice (h).]
(h) Hawk. P. C. b. 1, c. 22, s. 5.