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

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[250] Thomas Pinfold had asserted that those persons were not pirates, and for a very strange reason — he said he argued against this being piracy, as it was impossible they could be pirates, for a pirate was hostis humani generis--but they were not enemies to all mankind, and therefore they were not pirates. (Laughter.) Whereupon, the report said, “all smiled.” (Renewed laughter.) And hoe was asked if there was any such thing as piracy, if to be a pirate a man must be at war with all mankind? To which, as was natural, Sir Thomas made no reply, but only repeated what he had laid down before. (Laughter) Upon which one of the Lords of the Privy Council pressed the learned civilian with another question. He said: “Supposing any of His Majesty's subjects, by virtue of a commission of the late King, should by force seize the goods of their fellow-subjects by land — whether that would excuse them from being guilty at least of robbery; and if it would not of robbery, why should it more excuse them of piracy?” To which he made no reply. Now it was perfectly clear, under these circumstances, that those parties would be guilty of piracy, but he thought it was equally clear that in the case assumed by his noble and learned friend they would not be guilty of piracy. That was a matter that ought to be clearly understood, and as his noble and learned friend had, he thought, left it in some uncertainty, he had taken the liberty of trespassing upon their lordships' attention--(hear.)

The Lord Chancellor said his noble friend, the President of the Council, had laid down the law upon this subject in a perfectly correct manner. There was no doubt that if an Englishman engaged in the service of the Southern States, he violated the laws of the country and rendered himself liable to punishment, and that he had no right to trust to the protection of his native country to shield him from the consequences of his act. But though that individual would be guilty of a breach of the law of his own country, he could not be treated as a pirate, and those who treated him as a pirate would be guilty of murder. (Hear, hear.)

Lord Kingsdown said, as to the state of the law there could be no doubt a privateer acting under a Government was not a pirate. No doubt the United States did not put the extravagant proclamation they had issued upon the ground that privateers were pirates, because they themselves insisted upon the right of privateering. But they put it upon this ground, that they were dealing with rebels, and that they would hang them not, properly speaking, as pirates, but as persons who were guilty of high treason against the State to which they were subject. (Hear, hear.) Of course it was a matter for their own consideration what was to be the operation of that proclamation. He believed that the enforcement of that doctrine would be an act of barbarity which would produce an outcry throughout the civilized world, but he hoped that it was a mere brutum fulmen, and not intended to be carried out. But that being the case with regard to their own country, the case with regard to England was quite different. We had recognized the Southern Confederacy, not as an independent State, but as a belligerent Power; and therefore, if the Federal Government should act upon the principle they had laid down as against British subjects, he apprehended that this Government might with perfect justice interfere, and under some circumstances they might, by the influence of public opinion, be compelled to interfere. (Hear, hear.). Yet, at the same time, the offender could not as a right, having acted in violation of the feeling of his own country, and therefore of his own Government, call upon his Government to interfere. That, he apprehended, was the state of the case, and he must say he thought it impossible that the Government could have framed the proclamation more prudently than they had done with respect to articles contraband of war. For instance, provisions might become contraband of war, if sent to a port where there was an army of a State at war, and that army was in great want of provisions. Again, coals sent to a country at war, if sent for manufacturing purposes, were not contraband of war; but they would become so if sent where there were war steamers, and for the purpose of supplying those war steamers. It was, therefore, quite impossible to frame a proclamation under which there would be no difficulty of definition. With respect to the matter of blockade, the practice had been very much modified and altered by the introduction of steam, as one steamship would take the ground of a number of sailing vessels; but it had been held that a blockade could not be constituted by drawing a line which would prevent vessels from going to particular ports to which they had a right to go.

Lord Brougham hoped and trusted that all persons would take notice of the warning given in the proclamation that British subjects serving in the American war must run the risk of whatever penalty they might be liable to, whether they served on the one side or the other, at sea or on land. A case had occurred about thirty years ago, where two British subjects were tried and hanged for piratical interference on land, and no step was taken to save their lives or avenge their death.

The Earl of Ellenborough said the object of the proclamation was certainly to deter Englishmen from engaging on either side in war in America, and they were told that if they acted in this respect against the law of their country and against the law of nations, they must not expect any protection from the British Government. But he very much feared that a great deal that had passed that night would tend much to diminish the effect of the proclamation. He only hoped that it would not do so, because he was quite sure that long before diplomacy could interfere in the matter, the offender would be hanged.

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