This is part one of a two-part series. Read part two here.

I.

In December, 1865, the public mind was startled by the announcement that “the pirate Semmes,” as he was commonly called, had been arrested in Mobile by order of the Secretary of the Navy, brought to Washington as a prisoner, and closely confined in the Marine Barracks.

It was rumored that Semmes was to be tried by court-martial or military commission, though upon what charge or for what offence the public knew not.

As the Rebellion was ended, and Semmes, who had been paroled under the Sherman-Johnston military convention and sent home to Mobile, had quietly engaged in civil life, some surprise was occasioned by his arrest and imprisonment. A few discreet Union men regretted this proceeding, but the general feeling was one of satisfaction, if not of exultation.

The exploits of Semmes were by no means forgotten by any one; and they rankled in the memories of thousands who had suffered from the depredations of the Sumter and Alabama.

In less than seven months of 1861-62, the Sumter had captured eighteen vessels.1

The Alabama had done still greater mischief. Between September 7, 1862, and April 27, 1864, she captured or destroyed sixty-two merchantmen and whalers, and one ship-of-war.2

Such enormous destruction of ships, and the consequent interruption of commerce, had made the name of Semmes both terrible during the war, and hateful after it, to every Federal ship-owner, master, seaman, and insurer; and this prevalent dislike was increased by the fact that the Alabama, as far as possible, and as if fearful of fight, avoided encounter with naval vessels, and was envenomed by her long and successful efforts to escape our cruisers, while making such havoc with unarmed ships in every sea, as well as by the evasion of her commander from Captain Winslow and the Kearsarge, in an English yacht, under shelter of the British flag, thus rendering our victory a mere triumph over lifeless wood and iron; while the fiery captain, who had alone made the Alabama mischievous, eluded the grasp of his antagonist, and was again ready to command new Alabamas, and repeat his career of capture and burning.

It was, moreover, reported and believed that Semmes had violated the laws of war by cruelties inflicted upon unresisting victims, by perfidious conduct at Cherbourg during and after the fight, and that he had knavishly contrived to obtain a parole as Brigadier-General, to which he was not entitled.

No name connected with the Rebel service, unless that of some spy, “bush-whacker,” or guerilla of the grossest criminality, was so generally detested as that of Raphael Semmes. Harsh epithets were heaped upon him, not only by sailors and master-mariners, and merchants whose ships and goods had blazed under his torch, not only by “sensational” reporters and editors, but by some of our gravest writers and highest dignitaries, by whom he was habitually stigmatized as “free-booter,” “rover,” “corsair,” and “pirate.” Thus, for example, Mr. Everett, in August, 1864, some six weeks after the engagement which ended in the sinking of the Alabama, contributed to the “New York Ledger” an article entitled “The Pirate Alabama,” by Edward Everett, whose purpose was to denounce Semmes, not only as a pirate, but as capable and guilty of habitual violations of honor, courage, municipal law, and the law of nations.

When Mr. Everett wrote this article, he knew that Captain Winslow, of the Kearsarge, had treated the officers and men of the Alabama who fell into his hands, not as pirates, corsairs, or free-booters, but as belligerents, prisoners of war, by admitting them to parole; that by establishing a blockade of Confederate ports, our government had recognized the Confederates as belligerents, if not as a belligerent state, and had thus confessed that Confederate officers and men, military or naval, could not be treated as pirates or guerillas, so long as they obeyed the laws of war; that the same recognition was made when cartels for exchange of prisoners were established between the Federal and Confederate authorities and, above all, when the Federal executive, after the courts had declared Confederate privateersmen to be pirates, had deliberately set aside those judgments, and admitted the captured and condemned officers and men of the Savannah and the Jeff Davis to exchange as prisoners of war.3

In the Annual Report of the Secretary of the Navy, dated December, 1864, the Alabama is a “piratical cruiser that roamed the seas, robbing and destroying, … shunning all armed antagonists.” The Alabama and Florida are “rovers” which had “never, during their entire piratical career, sent in for adjudication and condemnation a single ship or cargo”; and “corsairs” perpetrating “robberies, stealing chronometers,” “plundering” and burning vessels, etc. Alluding to the fight off Cherbourg, that Report says that Semmes’s “conduct on this occasion” was marked by “the same dishonor” as his “whole ignoble career”; that before leaving Cherbourg for the fight, which he himself had challenged, Semmes “deposited the chronometers and other trophies of his robberies on shore”; and “when beaten and compelled to surrender, he threw overboard the sword that was no longer his own, and, abusing the generous confidence of his brave antagonist, stole away in the English tender, whose owner proved himself; by his conduct, a fit companion for the dishonored and beaten corsair.”

Proceeding fervido animo, — the fervor somewhat confusing the process of thought, — the Report complains that this “corsair” disregarded the laws of war by running away after his offer of surrender; as though “pirates” were subject to those laws. “Having surrendered, says the Report, Semmes cannot relieve himself of his obligations as a prisoner of war, until he shall be regularly exchanged.”

The feelings thus expressed by eminent men in 1864, and which were universally diffused, continued, with little diminution, to inflame the public mind in December, 1865; and it is less surprising that Semmes was at last arrested, than that so many months were allowed to pass before he was seized at Mobile, and imprisoned to await trial at Washington.

The manner of his arrest is described by Semmes himself, with reasonable accuracy, in these words: —

“On the night of the 15th of December, 1865, or seven months and a half after I had received the guaranty of General Sherman, at Greensboro, North Carolina, that I should not be molested by the United States authorities, a lieutenant of the Marine Corps, with a guard of soldiers, surrounded my house, and arrested me on an order from Mr. Gideon Welles, without the process of any court. I was torn from my family, under guard, and hurried off to Washington. I was kept a close prisoner, with a sentinel at my door, for nearly four months.”4

Semmes was not so suddenly “torn from his family,” nor “hurried off” so precipitately, as to prevent his writing a formal protest against his arrest to General Woods, then in command at Mobile, in which he claims exemption from such arrest by virtue of his parole under the Greensboro convention, as he again does in his letter to General Sherman, two days after his arrest, and as he subsequently did in several communications to President Andrew Johnson.

As Semmes relied upon this “guaranty” as a bar of all proceedings that might be commenced or conducted, in any court, civil or military, for any act done by him during the Rebellion, I will give his account of the circumstances attending his surrender and parole, and also the form of parole, and the article of the Sherman-Johnston military convention under which it was received.

He says: “The country is familiar with what occurred at Greensboro between Johnston and Sherman. … Sherman entered into an agreement … that the Southern States should be regarded as ipso facto on the cessation of the war, restored to their rights in the Union. … Stanton rejected the convention, reminding Sherman that he was nothing but a soldier. … He now entered into a purely military convention.5 The main features of that convention were, that Johnston should disperse his army, and that Sherman should, in consideration thereof, guarantee it against molestation by the Federal authorities. Commissioners appointed by the two generals met. … May 1, 1865;” namely, “Brevet Brigadier-General Hartsuff, on the part of the Federals, and Colonel Mason, on the part of the Confederates. Each guaranty of non-molestation had been prepared beforehand, in a printed form, and signed by Hartsuff, and only required to be filled up with the name and rank of the party entitled to receive it, and signed by myself, to be complete. … I produced the muster-roll of my command. The general counted out an equal number of blank guaranties, and, handing them to me, said, ‘You have only to fill up one of these for each officer and soldier of your command, with his name and rank, and sign it and hand it to him. I have already signed them myself. You can fill up the one intended for yourself in like manner.’ ‘With regard to the latter,’ I replied, ‘I prefer, if you have no objection, to have it filled up and completed here in your presence.’ ‘O, that makes no difference,’ he replied. ‘Very well,’ said I; ‘if it makes no difference, you can have no objection to complying with my request.’ He now called an aide-de-camp, and, desiring him to be seated at the table where we were, told him to fill up my guaranty after my dictation. I gave him my titles separately, making him write me down a Rear-Admiral in the Confederate States Navy, and a Brigadier-General in the Confederate States Army. When he had done this, he handed me the paper. I signed it, and put it in my pocket, and turning to the general, said, ‘I am now satisfied.’

Semmes’s account proceeds as follows: “It was well I took the precaution above described; for when I was afterwards arrested, the Yankee press, howling for my blood, claimed that I had deceived the paroling officer, and obtained my parole under false pretences, the said paroling officer not dreaming, when he was paroling one Brigadier-General Semmes, that he had the veritable ‘pirate’ before him.”

While it is not unlikely that General Hartsuff may have been far from suspecting that Rear-Admiral, Brigadier-General Semmes was Commander Semmes of the Alabama, there is no probability that such ignorance influenced his conduct, or that he would have treated “the veritable pirate” any differently, whatever had been his knowledge of his past career; for neither he nor any “Yankee press” ever supposed that a military convention, or parole, was a “guaranty” against criminal liability.

The parole is in these words: “In accordance with the terms of the military convention entered into, etc., R. Semmes, Rear-Admiral and Brigadier-General, C. S. Navy and C. S. Army, commanding brigade, has given his solemn obligation not to take up arms against the government of the United States, until properly released from this obligation; and is permitted to return to his home, not to be disturbed by the United States authorities so long as he observes this obligation, and obeys the laws in force where he may reside.”

The fifth article of the convention referred to provided that the Confederate officers and men who surrendered to Sherman, should be permitted to return to their homes, not to be disturbed by the United Stated authorities so long as they observe their obligations, and the laws in force where they reside.

On the sixth day of January, 1866, Semmes, by his counsel, wrote to the President, reiterating the opinions which he had already urged upon General Wood and General Sherman. Five days afterwards, there was published in the Washington newspapers an opinion of Attorney-General Speed, in which that officer asserted that Confederates guilty of violations of the laws of war might be tried for such offences by military courts, notwithstanding their surrender and parole under military conventions.

This opinion led to a second letter, dated January 15, 1866, from Semmes to the President, written at great length, and giving the fullest expression to his peculiar views. The letter recites the fifth article already quoted, and asserts that Semmes’s arrest and detention are infractions of that convention. “The question for you, then, to decide, Mr. President,” says this letter, “is the legality of this arrest”; and the writer insists that he cannot, legally, “be held to answer for any act of war committed anterior to the convention.” He argues that every violation of the laws of war is an act of war, for the perpetration of which, no matter how monstrous the crime may be, he can never be held, or tried, by any tribunal.

He thus confounds two things utterly unlike, and lays down a proposition that shocks humanity, and is at variance with well-settled cases and doc- trines. The wilful torture and starvation of prisoners, in the case of Wirz; incendiary attempts in peaceful cities, in the case of Kennedy; the attempt to throw railroad trains from the track, in States remote from the seat of war, in Beall’s case, — were held, and properly held, to be no more acts of war than is the poisoning of wells or the massacre of infants, or any other wanton outrage upon the helpless and unoffending. This joinder of incongruities, this confusion of res insociabiles, this discordia rerum, betrays not only mental blindness, but a perversity of heart that would relegate civilized warfare back to and beyond the barbarisms and horrors of three thousand years ago.

“I did not surrender unconditionally,” says this letter, “but upon terms; … 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, as Semmes alleged, was the attempt made by the Secretary of the Navy in ordering his arrest, imprisonment, and trial.

Upon Semmes’s theory it was quite immaterial whether he had, or had not, either occasionally or habitually, carelessly or with deliberate malignity, As regarded the law and usage of war; yet he denies, and in this letter seeks to disprove, that he had been guilty of any such crime. Forgetting that he had described the convention under which he was paroled as “a purely military convention,” he insists that this convention, having been approved by the President as Commander-in-Chief, at Washington, had acquired the force of a treaty, and had become of perpetual and universal obligation to protect him from prosecution and punishment for any offence committed by him prior to its date, and refers to the delay in ordering his arrest as proof that the administration had so regarded it.

So confident was he in this opinion, and of President Johnson’s concurrence therein, that he cast himself unreservedly into the Presidents hands, and made him his sole judge. He said, “I put it to you, Mr. President, as a man and a magistrate, to say, and I will rest my case on your answer, whether it was consistent with honor and fair dealing for this government, first to entrap me, and then, having me in its power, to arrest me and declare that convention null and void.”

For “answer” to this application, the President referred it to the Secretary of the Navy, upon whose charge and by whose order the arrest of Semmes had been made. To him and to the law officer of his department was allotted the duty of determining whether Semmes should be tried, and, if yea, for what crimes or offences and upon what charges and specifications. It was understood that President Johnson would not allow a military court to try Semmes for simple piracy or treason, but only for offences against that code of law which governs all belligerents.

The first question upon which I had, as Solicitor and Naval Judge Advocate General, to advise the Secretary, after Semmes had been brought as a prisoner to Washington,6 was whether, under the military convention and parole which Semmes so earnestly pressed upon the executive notice, and which he would, of course, plead in bar of trial, whenever arraigned, he could lawfully be tried.

My own opinion was, that capitulations of surrender do not deal with the surrendering force as criminals; that if they attempt so to do, they trespass on the civil authority and its functions; and that such trespass is illegal. The belligerent who has conformed to the laws of war is never regarded by his opponent as a culprit, although, if taken prisoner, he may be held in confinement to prevent his again becoming an active enemy. But this detention, whether by actual imprisonment or by the obligation of a parole, is not a punishment for misconduct.

Neither capture, confinement, parole, exchange, nor discharge under capitulation can affect the criminal liability of an offender against municipal or public laws. Principle and precedent concur in showing that no form of military protection is a shield against such liability. Neither passport nor flag of truce can protect a spy or a deserter; and good American authority has held that a prisoner of war under the safeguard of a capitulation may be selected for punishment by way of retaliation.7

I had no legal doubts upon this subject. The Attorney-General was equally confident. But it was a grave question, and I wished to fortify my opinion by that of publicists and jurists of the greatest weight and reputation. I therefore took counsel of Charles Eames, Esq., of Washington, now, alas, dead, but then in the zenith of his bright career; full of learning, inspired by genius, and inspiring by his eloquence. I conferred, also, with Charles Sumner and Caleb Cushing, whose names are themselves titles of distinction, and whose concurring judgments confirmed my conviction that Semmes was still amenable to justice, and subject to trial for any offence against the rules of civilized warfare.

I applied, of course, to Dr. Francis Lieber, in whose learning and devotion to the Union the government and people of his adopted country fully confided, and whose friendly aid I had enjoyed in several important military trials while I was acting as Judge-Advocate of the Military Department of the East. “There can be no doubt,” answered Dr. Lieber, “that we have a perfect right to try him for any offence beyond that of fighting against his legitimate government. The agreement between him and General Hartsuff is a strictly military agreement. It is no pardon for any offences, not even for the offence of having traitorously carried arms against his own country. No agreement, contract, or convention can cover more than its own character and nature imply. This is a question between belligerents. It says, ‘Instead of making you an actual prisoner, I let you go on parole,’” etc.

Professor Lieber, in communicating this opinion, kindly stated that it had the support of Dr. Theodore W. Dwight, his colleague in the Law School in New York; and referred me, for a more elaborate expression of his views, to an article of his own, published in the “Independent.” He also reminded me that, in 1863, “instructions for the government of armies of the United States” had been prepared by him, under the direction of President Lincoln, by whom they were approved after revision by a board of army officers, and which became the now world-famous “GENERAL ORDER No. 100,” of that years issue of the War Department.

“Paragraph 59” of that “order” contains these words: —

“A prisoner of war remains answerable for his crimes committed against his captor’s army or people before he was captured, and for which he has not been punished by his own authorities.”

This “order” was made known at the date of its issue (1863) to the Confederate rebels, and it notified them what to expect at our hands, if they surrendered. As Dr. Lieber remarked, “We have fought on this proclamation, and there has been no misunderstanding on this point.”

From President Woolsey of Yale College, himself a leading author and authority on public law, and from Professor Twining of the Yale Law School, I received, in like manner, prompt and friendly answers to my application, containing full and able opinions, corroborating those of Eames, Sumner, Cushing, Lieber, and Dwight. For their generous assistance all these learned and patriotic jurists deserve, and have, my warmest gratitude.

These opinions, supported by the precedents of Marshal Ney and of the Crimean case quoted by Lieber in the “Independent,” determined the Secretary of the Navy to bring Semmes to trial, provided the evidence should, upon careful preliminary examination, seem strong enough to sustain the charge of violation of the laws of war.

The precedents just named are as follows: —

Marshal Ney first deserted the Emperor and joined the Allied forces which restored Louis XVIII. to the French throne. On Napoleon’s escape from Elba, Ney deserted Louis, and returned to his old master, for whom he fought during the famous “hundred days.” After the capitulation of Paris to the Allies, July 3, 1815, which included Ney, who was then in the French capital, he was arraigned upon the charge of treason, and pleaded the capitulation in bar of trial.

Article twelve of the capitulation stipulated that not only the inhabitants, but “all persons in the capital should continue to enjoy their rights and liberties without being disturbed or brought in question, in respect of any functions in which they had been engaged relative to their conduct or politics.”

This article was held by the Duke of Wellington, and by the Chamber of Peers which formed the court for Ney’s trial, to be “purely a military convention,” as Sernmes described the Sherman-Johnston convention, and not to affect the rights of the French government to prosecute and punish Ney for his treason. His plea was overruled, conviction followed, and a few hours after sentence he was shot.

It may have been, and doubtless was, foolish, cruel, and unjust to carry this sentence into execution. But all Europe acknowledged that the convention was correctly construed, and that Ney was fairly tried.

During the Crimean War, a Russian officer taken prisoner by the French and English troops was accused of inciting his men to mutilate and kill wounded enemies lying helpless on the field of battle. For this brutal violation of the law of war he was tried by a court-martial convened by his captors, found guilty, and executed. Accounts of this trial and execution of this prisoner of war were published in the journals of different European countries, and nowhere was any disapprobation expressed against the procedure or the principle. Both were everywhere felt and admitted to be right.8 These principles and precedents settled the question of legal liability. And so it was decided that Semmes should be tried, if, on inquiry, he was clearly an offender.

The next question to be answered, then, was, whether he had been guilty of any, and, if any, what, offences against the law and usages of war.

This general inquiry was considered and pursued under various detailed and specific forms, namely: —

1. Was it such offence to attack, capture, and destroy our unresisting private vessels, and their cargoes, without any effort to send them in for adjudication?

2. Had Semmes, and if yea, in what cases, and how, maltreated his captives, or been guilty of culpable cruelty?

3. Was his conduct criminally perfidious at or after the engagement between the Kearsarge and Alabama, off Cherbourg?

4. Was any one, and which, of the crafty tricks and expedients resorted to by Semmes for the purpose of concealing or misrepresenting the real character and purpose of his ship—or, as Mr. Everett expressed it, for the purpose of “cheating into his power” the unarmed vessels on which he made such fatal warfare; or in effecting his hostile plans, such as extinguishing the light-houses at the mouth of the Mississippi in order to escape unseen by our blockading ships; or assuming the flag of the United States, or of any other recognized nationality; or burning captured vessels as decoys; or “stealing chronometers,” or otherwise “plundering” from the vessels he seized and burned—was any one of these acts of fraud or force an offence against law?

5. If Semmes violated neutral rights, as, for example, by pursuing our vessels into neutral waters and there destroying them, is that an offence for which our government will bring him to trial as an offender against public law?

Some of these questions were promptly answered.

1. It was resolved that neutral powers should be left to vindicate their own rights in their own way.

2. It was concluded that if Semmes was so far a lawful belligerent as to be subject to the laws of war, he must, also, be entitled to all warlike rights, customs, and immunities, including the right to perform all of the customary cheats, falsifications, snares, decoys, false pretences, and swindles of civilized and Christian warfare; to “steal chronometers,” or otherwise “plunder” before destroying his captures; and that although it might be an act of barbarism forbidden by public law to extinguish lighthouses in ports not under blockade, and thus wantonly endanger the lives and property of the whole commercial world, yet such an act is not criminal at places closely blockaded, as was New Orleans in June, 1861, when Semmes escaped from the mouth of the Mississippi and the vigilance of the Mohican.

It was also determined to collect from original sources all procurable evidence in regard to Semmes’s treatment of prisoners, and his conduct during and after the sea-fight off Cherbourg, before attempting to prepare charges against him.

The other, and first above-stated inquiry, namely, that respecting the captor’s duty of sending in captures for adjudication, was met and answered rather as a question of policy than as matter of public law. Without consulting publicist or jurisconsult, it was easily possible to see and show that we, as a government, could not afford to prosecute and punish as a criminal any naval officer for capturing and destroying the enemy’s trading vessels, as fast as possible, not only without any attempt to send them in for adjudication, but with a determined purpose and policy not to do so.

This conclusion was the result of a careful study of our own naval history, and of a thoughtful examination of future possibilities in the event of war between the United States and some great commercial nation.

I will not dwell upon this last division of the topic, but content myself with a reference to that past theory and practice of our naval warfare, which rendered it impossible to punish Semmes for having learned and practised so successfully the lesson taught by our own instruction and example, in the Revolutionary War, when we were rebels, and in the last war (1812) with Great Britain.

The earlier records are imperfect but enough can be gathered from our naval historian, Cooper, to show that many of the vessels captured in the war of the Revolution were destroyed at sea.

Of the history and policy of the later period we have abundant proofs. Not less than seventy-four British merchant-men were captured, and destroyed as soon as captured, under express instructions from the Navy Department, and in pursuance of a deliberate purpose and plan, without any attempt or intent to send or bring them in as prizes for adjudication. The orders of the department upon this subject are numerous, emphatic, and carefully prepared. They deserve to be studied and remembered; and they effectually silence all American right or disposition to complain of Semmes for having imitated our example, in obedience to similar orders from the Secretary of the Confederate Navy.

The instructions to which I refer were addressed to Captains David Porter and O. H. Perry, each in command of a squadron; to Captain Charles Stewart, of the Constitution, twice; to Captain Charles Morris, of the Congress; Commandant Lewis Warrington, of the Peacock; Commandant Johnston Blakely, of the Wasp; Master Commandant Joseph Bainbridge, of the Frolic; Master Commandant George Parker, of the Siren; Master Commandant John O. Creighton, of the Rattlesnake; Lieutenant William H. Allen, of the Argus; Lieutenant James Renshaw, of the Enterprise; and Master Ridgely, of the Erie.9

Extracts from the instructions of the department which led to these immediate burnings of captured vessels will best show the precise purpose and deliberate policy of the government.10 I will, therefore, quote brief passages from some five or six different orders as samples of all.

“The great object,” says one of them, “is the destruction of the commerce of the enemy, and the bringing into port the prisoners, in order to exchange against our unfortunate countrymen who may fall into his hands.” “You will, therefore, man no prize, unless the value, place of capture, and other favorable circumstances shall render safe arrival morally certain.” “You will not agree to the ransoming of any prize.” “Grant no cartel, nor liberate any prisoners, unless under circumstances of extreme and unavoidable necessity.”

In another it is said, “You will, therefore, unless in some extraordinary cases that shall clearly warrant an exception, destroy all you capture; and by thus retaining your crew and continuing your cruise, your services may be enhanced tenfold.”

“I have it in command from the President strictly to prohibit the giving or accepting, directly or indirectly, a challenge to combat ship to ship.”

Again: “Your own sound judgment and observation will sufficiently demonstrate to you how extremely precarious and injurious is the attempt to send in a prize, unless taken very near a friendly port, and under the most favorable circumstances Policy, interest, and duty combine to dictate the destruction of all captures, with the above exceptions.”

Another: “The commerce of the enemy is the most vulnerable point of the enemy we can attack, and its destruction the main object; and to this end all your efforts should be directed. Therefore, unless your prizes should be very valuable and near a friendly port, it will be imprudent and worse than useless to attempt to send them in the chances of recapture are excessively great; the crew, the safety of the ship under your command, would be diminished and endangered, as well as your own fame and the national honor, by hazarding a battle after the reduction of your officers and crew by manning prizes. In every point of view, then, it will be proper to destroy what you capture, except valuable and compact articles, that may be transshipped.11 This system gives to one ship the force of many.”

Another order says that “a single cruiser, if ever so successful, can man but a few prizes, and every prize is a serious diminution of her force; but a single cruiser, destroying every captured vessel, has the capacity of continuing, in full vigor, her destructive power, so long as her provisions and stores can be replenished, either from friendly ports or from the vessels captured … Thus has a single cruiser, upon the destructive plan, the power, perhaps, of twenty acting upon pecuniary views alone;12 … and thus may the employment of our small force in some degree compensate for the great inequality [of our force] compared with that of the enemy.”

Such were the policy and the orders of President Madison and of the Secretary of the Navy in 1812, 1813, 1814; and such beyond question would be the plan and the instructions of any administration under like circumstances.

Not only did Semmes’s official conduct conform to this well-known policy of the American Navy, but it was directed by similar instructions from the Secretary of the Confederate Navy. “Do the enemy’s commerce the greatest injury in the shortest time,” was Mr. Mallory’s significant order to Semmes, in June, 1861; and never, in naval history, has such an order been so signally obeyed; never has there occurred so striking an example of the tremendous power of mischief possessed by a single cruiser acting upon this “destructive plan,” as that furnished by the Sumter and her successor, the Alabama, under the command of Semmes, whose untiring activity, restless energy, and fiery zeal found no voyage too long, no movement too prompt or too rapid, no danger too great, no labor too wearisome, in the accomplishment of the Confederate purpose to ruin our commerce by destroying our ships and their cargoes, or driving them from the ocean. He was, probably, beyond all other men who had been trained in our navy, the man to carry out the “destructive policy”; and so fatally well did he perform his duty, that twenty years will scarcely suffice to restore our ships and commerce to their old prosperity.

Now, while it might be pardonable, even in Mr. Everett while writing for the “Ledger” and catering to popular taste or prejudice, to forget this most remarkable chapter and policy in our naval history and administration, it could not safely be forgotten or ignored by any law officer of the government, in preparing for the trial of Semmes, who was certain to plant his defence upon the precedents and practice of that navy in which he had been educated and employed, and who, moreover, was entitled to the full weight of those precedents with the executive while considering whether he ought to be held for trial. Justice required that the Rebel captain should be fairly treated, and I had no sympathy with those persons, official or unofficial, who denied courage and gallantry to Semmes, because he, like our own Bainbridge, Morris, Porter, and Stewart, had implicitly obeyed the orders under which he sailed, and devoted himself to that “destructive plan” which, while it was of vast service to the Confederate cause and of incalculable injury to the Federal mercantile marine, deprived him, as it had deprived them, not only of all hope of prize-money, but also of that higher reward, the distinction and glory arising from well-contested fights, successful engagements with “foemen worthy of his steel,” and “combat ship to ship.”

It is evident that, after it had been, as it soon was, resolved that neither treason nor piracy should be charged against Semmes before a military or naval tribunal, and that his methods of capturing, “plundering,” and destroying vessels should not be treated as offences against public law and duty, but that he should be dealt with as a belligerent naval officer, bound to obey the laws of war and entitled to their protection, it was needless to inquire where or by whom the Alabama was built, manned, armed, or commissioned; or whether a government without an open port can legitimately own or employ a naval force. These inquiries, however interesting or important they might be in other connections, were of no sort of interest or importance as elements of a trial for violating the laws of war in the conduct of a cruiser subject to those laws, and protected by them.

In this way the field and the duty of inquiry were reduced to the two subjects of cruelty to prisoners and perfidy towards Captain Winslow and the power he represented.

In my next paper will be stated the methods and the result of this two-fold investigation.

This is part one of a two-part series. Read part two here.

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  1. Seven of these were sent to Cuba as prizes, but were restored by the Spanish authorities to their original owners; two were recaptured, two released on ransom, and seven were burned. One only was burned, however, until after these recaptures and restorations had convinced Semmes that all attempt to send his captures in for adjudication was a waste of both time and men.
  2. The U. S. steamer Hatteras was sunk; seven vessels were admitted to ransom; one was made a cartel; the other fifty-four were burned as soon as captured.
  3. The reluctance with which this recognition was granted does not affect its validity. After having refused, again and again, President Davis’s offers of exchange, the Federal executive, being at last notified that fourteen Union prisoners—six colonels, two lieutenant-colonels, three majors, and three captains—had been shut up in felons’ cells, to be hung whenever the Confederate privateers were executed, concluded to regard those “pirates” as lawful belligerents entitled to exchange.
  4. I quote from “Memoirs of Service afloat, during the War between the States, by Admiral Raphael Semmes, of the late Confederate States Navy, author of ‘Service afloat and ashore during the Mexican War,’” published at Baltimore in 1869. This book, under a slightly different title, was published in London the same year. Semmes never was Admiral, but then he was Brigadier-General when paroled in May, 1865; and as be omits this title from his title- page, we may forgive him for overstating his naval rank.
  5. I underscore these words to impress them on my reader’s mind. Semmes seems not to have realized their full import.
  6. Until Semmes had been thus brought to Washington, I had had no knowledge of any proceedings against him.
  7. Washington seized Badgely and Hatfield as deserters, though covered by a flag of truce; and to an application for their release, he declared that the flag could not screen either deserters or criminals. Arnold’s passport could not save André. When the English Captain Lippincott murdered Huddy, Washington threatened, unless Lippincott were given up for trial, to hang some English captain chosen by lot from among prisoners held under capitulation.
  8. Lieber says: “If it were discovered that a prisoner of war had been concerned in the poisoning, or other assassination of an enemy, before his capture, he would plainly remain answerable for the crime, and would be wholly unprotected by his status as prisoner of war; and the law and usages of war make no distinction as to obligations, or status, between the paroled prisoner and the prisoner in custody.” The “Report on the Conduct of the War,” Part III. pp. 4, 5, 17, 18, shows that General Sherman did not intend by his convention to screen any criminal.
  9. Of the 74 captures made under these orders of instant destruction, 6 were by the Essex; 5 by the Constitution; 5 by the President; 8 by the corvette Adams; 2 each by the Hornet, the Chesapeake, and the Rattlesnake, in company with the Enterprise; 2 each by the Siren and Frolic; 11 by the Wasp; 13 by the Argus; and 54 by the Peacock.
  10. I copy, not merely from the original records, but from Peter Force’s “American Archives,” and from Congressional printed documents connected with the petitions of the gallant officers above-named, for an appropriation in lieu of prize; obedience to these “destructive” orders having deprived them of all benefit from their captures.
  11. Such as “chronometers”? What a curious comment is this upon she current complaints against Semmes, that he saved chronometers from the ships he captured and destroyed!
  12. That is, upon the hope of prize-money from captures sent in for adjudication.