Rebellion Record: a Diary of American Events: Documents and Narratives, Volume 1.
Frank Moore, Ed.

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[249] by Her Majesty, or that all Her Majesty's subjects would be liable to penalties. Her Majesty's Government should make it clearly understood that a mere paper blockade, alleged to extend over a wide extent of coast which it was impossible to blockade, would not be recognized as valid by the British Government. But there was another more important point. Words had been used by his noble and learned friend on a previous occasion, which, coming from such high authority, might give rise to serious consequences if misconstructed. His noble and learned friend said that by the law of nations privateering was piracy, and if that were so, the Northern States would be justified in carrying out the theory and treating privateering as piracy. He apprehended that if any thing was clearer than another, it was that privateering was not piracy, and that no law could make that piracy, as regarded the subjects of one nation, which was not piracy by the law of nations. (Hear, hear.) Consequently the United States must not be allowed to entertain this doctrine, and to call upon Her Majesty's Government not to interfere. They must not strain the law so as to visit with penalty of death, as for piracy, persons entitled to Her Majesty's protection. That was a question which could not be viewed with indifference, but must be seriously considered by the Government. It is quite right that the people of this country should be warned of the peril; but, on the other hand, it was essential that the United States should not be induced to deny the general interpretation of international law, and to inflict a punishment on privateering which was never inflicted by that law. He knew it was said that the United States treated the Confederate States of the South as mere rebels, and that as rebels these expeditions were liable to all the penalties of high treason. That was not the doctrine of this country, because we have declared that they are entitled to all the rights of belligerents. The Northern States could not claim the rights of belligerents for themselves, and, on the other hand, deal with other parties not as belligerents, but as rebels. These were the two points on which it was most desirable that no misunderstanding should exist between the Government of Her Majesty and the United States--that we would not recognize any thing but a clear and effectual blockade actually enforced, and that we would not recognize the doctrine that any declaration or law of the United States against the Southern States should have the power, as regarded others, of constituting privateering piracy, and visiting it with all the penalties attached to piracy. (Hear, hear.)

Lord Brougham said it was clear that privateering was not piracy by the law of nations, however much it might be lamented that it was not so. But if any person or subject of this country entered into an expedition against another country, with which we were at peace, that was of itself a piratical act, and they had themselves to blame who, after full warning, chose to take that course, and could not expect their Government to interpose to save then from the extreme penalties attached to that course. As had been said in the previous discussion upon this subject, their blood would be upon their own heads. With regard to articles contraband of war, it would have been much better if the Government could have introduced some invariable, certain, and definite descriptions, but with the progress in naval science things become contraband of war which were not so before, and it was impossible, therefore, to lay down any fixed or invariable terms. He entirely agreed with his noble friend in holding that it was not necessary to constitute a blockade that every port of the coast should be so blockaded as to make entrance impossible, but it was enough that it should be made such as to afford a reasonable chance that no entrance could be effected.

Lord Chelmsford thought it might be as well to bring his noble and learned friend's opinion to a test. The Southern Confederation was admitted by the Government of this country to be a belligerent Power. Now, he wanted to know whether his noble and learned friend meant to say that if an Englishman was commissioned by the Southern Confederation — it being recognized as a belligerent Power--to fit out a privateer against the Federal Government, that that person, under those circumstances, would be guilty of piracy. That he ought to be, was the opinion of many judges. [The Lord Chancellor: “No, No.” ] Well, it was the opinion of many. Now, undoubtedly those persons would be answerable to their own Government for an infraction of the Foreign Enlistment Act; but it was clear, upon the question of international law, that they would not be liable to be treated as pirates. The warning given by the proclamation was very useful and most necessary; and if persons would engage in expeditions of this kind after the notice that the Government would not interfere, they must take the consequences they had drawn upon themselves. If the Southern Confederacy had not been recognized as a belligerent Power, he agreed with his noble and learned friend, that, under those circumstances, if any Englishman were to fit out a privateer for the purpose of assisting the Southern States against the Northern States, he would be guilty of piracy. (Hear, hear.) And the question arose, after the abdication of James II., when he commissioned persons to fit out enterprises against the commerce of this country. The question arose after James II. had been expelled from Ireland, and when he had not a foot of territory there, and when, therefore, he was merely claiming the right de jure. Now the question came before the Lords of the Privy Council, and they desired to have the opinions of learned civilians, and a report was given in a very grave and curious way by Dr. Tindal, who was one of the counsel. Sir