Raphael Semmes, Memoirs of Service Afloat During the War Between the States

[828] view of the case; and if the convention did not mean this, it could mean nothing; and I laid down my arms, not upon terms, as I had supposed, but without terms. If I was still at the mercy of the conqueror, and my arrest asserts as much, I was in the condi tion of one who had surrendered unconditionally; but it has been seen that I did not surrender unconditionally, but upon terms— terms engrafted upon a treaty ratified and approved by the conqueror's Government. Nor is it consistent with good faith to qualify or restrain those terms, so as to make them inapplicable to acts of war that may be claimed to have been in violation of the laws of war; for this would be to refine away all the protection which has been thrown around me by treaty, and put me in the power of the opposite contracting party, who might put his own construction upon the laws of war. This very attempt, Mr. President, has been made in the case before you. I claim to have escaped, after my ship had sunk from under me in the engagement off Cherbourg, and I had been precipitated into the water, the enemy not having taken possession of me, according to the laws and usages of war, as your Excellency may read in almost every page of naval history; the Secretary of the Navy claiming the contrary. The true, and the only just and fair criterion, is, was the act for which the arrest was made an act of war? If so, there is an end of the question, and I must be discharged, for, as before remarked, the convention, if it is anything, is an oblivion of all acts of war of whatever nature.

But it may be said that, although I cannot be tried by a military tribunal during the war, I may yet be tried by a civil tribunal after the war. Let us look at this question also. I was, undoubtedly, amenable to the civil tribunals of the country, as well after as before the convention, for any offence of a purely civil nature, not founded upon an act of war—to instance, as before, the crime of forgery. If I had committed a forgery in North Carolina, I could not, upon arraignment, plead the military convention in bar of trial. Why not? Because that convention had reference only to acts of war. I was treated with, in my capacity of a soldier and a seaman. But, does it follow that I may be tried for treason? And if not, why not? The Attorney-General tells you that treason is a civil offence, and in his opinion triable exclusively by the civil courts, and he hopes you will give him plenty of occupation in trying ‘many whom the sword has spared.’ (See his letter to you of the 4th of January, 1866.) But does not that officer forget that treason is made up of acts of war; and is it not apparent that you cannot try me for an act of war? The Constitution of the United States, which the Attorney-General says he loves even better than blood, declares, in words, that treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort—all of which adherence, giving of aid and comfort, &c., are equally acts of war. There is no constructive treason in this country. Thus I can neither be tried by a military tribunal during the war, nor a civil tribunal after the war,